ALJDEC - Licensing

2024A-01151-CHC-ROC · Registrar of Contractors · 2024-10-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Craig and Debra Daniels,

COMPLAINANTS,

v.

Pleasure Spas, Inc.

DBA: Pleasure Pools,

License Nos. ROC 166025, 201430,

RESPONDENT.

No. 2024A-01151-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 19, 2024

APPEARANCES: Complainants Craig and Debra Daniels appeared on their own behalf. Respondent Pleasure Spas, Inc., doing business as Pleasure Pools, did not appear. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Pleasure Spas, Inc., doing business as Pleasure Pools (“Respondent”), is the holder of License Numbers 166025 and 201430 issued by the Arizona Registrar of Contractors (“Registrar”).

In or about June 2023, Craig and Debra Daniels (“Complainants”) contracted with Respondent for Respondent to install a “spool” and landscaping at their home. The contract price was $78,854.40. Complainants made timely progress payments.

On or about January 30, 2024, the Registrar received a Complaint against Respondent from Complainants alleging abandonment of the project.

The Registrar assigned the Complaint to Investigator John Smith. After a March 20, 2024 Jobsite Inspection, at which Respondent was present, Investigator Smith issued a Written Directive to Respondent, dated March 22, 2024, that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on Monday, April 8, 2024.

You are directed to remedy the following violations by the appropriate means:

Complaint Item 2: “No mechanical pool equipment has been installed;”

Investigator’s Observations: Verified.

The pool equipment is not installed or on site.

The respondent stated that no additional work is currently scheduled.

Complaint Item 3: “No firepit has been installed;”

Investigator’s Observations: Verified.

Included in the Scope of work:

• Fire Pit + 18” level with spa, per plan

The fire pit structure is built, but not complete.

The respondent acknowledged the fire pit is not complete, and is in need of drainage corrections.

The respondent stated that no additional work is currently scheduled.

Complaint Item 5: “No artificial turf has been installed ;”

Investigator’s Observations: Verified.

Included in the contract:

• Pro-Evergrenn 84 Turf and 6” width travertine border against turf, per site plan Included in the Scope of Work:

• Synthetic Turf with 6” travertine boarder, per plans.

There is no turf installed or on site.

The respondent stated that no additional work is currently scheduled.

Complaint Item 6: “No curbing around artificial tuff has been installed;”

Investigator’s Observations: Verified.

Included in the contract:

• Pro-Evergrenn 84 Turf and 6” width travertine border against turf, per site plan Included in the Scope of Work:

• Synthetic Turf with 6” travertine boarder, per plans.

There is no turf, or turf border material, installed or on site.

The respondent stated that no additional work is currently scheduled.

Complaint Item 7: “No landscaping has been installed; trees, shrubs, rock, trellis, or lighting..;”

Investigator’s Observations: Verified.

Included in the Scope of Work:

• Gravel/Decorative Rock per plans from standard material selection.

• Landscape Plants: Landscape plants per budget allowance see contract items. Includes irrigation and valve connected to existing irrigation controller.

Landscape materials are not installed or on site.

The respondent stated that no additional work is currently scheduled.

Complaint Item 8: “No irrigation has been installed;”

Investigator’s Observations: Verified.

Included in the Scope of Work:

• Landscape Plants: Landscape plants per budget allowance see contract items. Includes irrigation and valve connected to existing irrigation controller.

Irrigation is not complete.

The respondent stated that no additional work is currently scheduled.

Complaint Item 9: “No stucco has been installed in the back of the spool wall applied;”

Investigator’s Observations: Verified.

Stucco has been applied/installed, but is not complete/painted.

The respondent stated that no additional work is currently scheduled.

Complaint Item 10: “Ground where trench dug for water and gas by plumber was not filled, packed, or level. The ground is sinking.”

Investigator’s Observations: Verified.

Back-filling has been performed; however, landscaping is not complete.

The respondent stated that no additional work is currently scheduled.

All errors in original.

Investigator Smith issued two Warning Letters to Respondent. One Warning Letter was for failure to comply with the required elements of a contract due to Respondent’s contract documents failing to contain the following information:

Investigator’s Observations: The respondent’s contract is missing the following information:

• The contractor’s ROC number

• An estimated date of completion

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the property owner

• A signature of the contractor

The other Warning Letter issued by Investigator Smith was for failure to comply with the required elements specific to a pool contract because Respondent’s contract lacked Provisions 1, 3, and 4 of A.R.S. § 32-1158.01 and the payment schedule is not in compliance with the progress payments as allowed by Provision 2.

Following the expiration of the deadline in the Written Directive, Investigator Smith ascertained that Respondent had not performed any corrective work and had not contacted Complainants.

Thereafter, Investigator Smith forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, A.R.S. § 32-1124(B), A.R.S. § 32-1158.01, and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

On May 24, 2024, the Registrar issued a Notice of Hearing advising the parties of the hearing date and time of July 3, 2024, at 1:00 p.m., and that a separate Order would be issued by the Office of Administrative Hearings providing a Google Meet link for the hearing. The Notice of Hearing was sent to the parties’ respective mailing and email addresses of record. Thereafter, the Tribunal issued an Order Setting Hearing Via Google Meet. The Order contained the Google Meet link to join the hearing by video or by telephone and it was issued to Respondent’s email address of record.

On the date and time set for hearing, Complainants appeared on their own behalf. Respondent did not appear. Investigator Smith was not present, as he had previously advised the parties and the Tribunal via letter dated May 24, 2024, that he would be unavailable to appear at the scheduled hearing. The Tribunal provided a fifteen minute grace period for Respondent to appear, however, Respondent continued in its non-appearance. Prior to the commencement of the hearing, given the choice of proceeding in Investigator Smith’s absence or continuing the hearing, Complainants chose to continue the hearing.

On July 5, 2024, the Tribunal issued a Minute Entry Granting Continuance and Setting Hearing Via Google Meet. The Minute Entry advised the parties of the continued hearing date and time of September 19, 2024, at 1:00 p.m., and provided the Google Meet link to appear by video or phone. The Minute Entry was sent to Respondent’s email address of record.

On the date and at the time set for continued hearing, Complainants appeared on their own behalf. Investigator Smith was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license

Investigator Smith testified consistently with his findings contained in the Written Directive. Investigator Smith testified that Respondent’s business card does not include Respondent’s license numbers preceded by the acronym “ROC.” Investigator Smith further testified that at the Jobsite Inspection, Respondent acknowledged that the project was incomplete. Investigator Smith advised that Respondent’s licenses are revoked.

Complainants agreed with Investigator Smith’s testimony. Ms. Daniels also testified regarding Complainants’ challenges with Respondent’s unresponsiveness and lack of communication, notwithstanding numerous attempts to contact Respondent by phone, email, and text. Respondent also told Complaints that it could not move forward with the project due to financial difficulties.

Administrative notice is taken of Respondent’s prior License record on October 4, 2024. Such prior License record reflects that Respondent’s License Number 166025 was first issued on July 30, 2001, and is revoked. Such prior License record also reflects that there are eleven (11) open complaints, three (3) resolved/settled complaints, and five (5) complaints resulting in discipline against Respondent’s license. Such prior License record also reflects that Respondent’s License Number 201430 was first issued on February 3, 2005, and is revoked. Such prior License record also reflects that there is the instant open Complaint, no resolved/settled complaints, and two (2) complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s and/or industry standards. Therefore, Complainants established that Respondent did not complete the project in a professional and workmanlike manner or in accordance with professional industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b).

The evidence established that Respondent’s written contract does not contain: i) Respondent’s license number; ii) an estimated date of completion for the project; iii) information about Complainants’ right to file a complaint with the Registrar; iv) contact information for the Registrar; v) Complainants’ signature; and vi) Respondent’s signature. Therefore, Complainants established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s business card does not include Respondent’s license numbers preceded by the acronym "ROC." Therefore, Complainants established that Respondent violated of A.R.S. § 32-1124(B).

The evidence established that the payment schedule set forth in Respondent’s contract is not in compliance with the progress payments schedule required by A.R.S. § 32-1158.01. Further, the contract is not in compliance with the requirements of A.R.S. § 32-1158.01(A)(1), (3) and (4). Therefore, Complainants established that Respondent violated A.R.S. § 32-1158.01.

The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive and Respondent did not establish valid justification for such failure. Therefore, Complainants established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Numbers 166025 and 201430.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, October 8, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

Pleasure Spas, Inc.

DBA: Pleasure Pools

[email redacted]

Craig and Debra Daniels

[email redacted]

John Smith

[email redacted]

By: OAH Staff