ALJDEC - Licensing

2024A-03195-CHC-ROC · Registrar of Contractors · 2024-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lisa Ann Gillingham,

COMPLAINANT

v.

Pleasure Spas Inc.

DBA: Pleasure Pools,

License Nos. ROC 166025, 201430,

RESPONDENT

No. 2024A-03195-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 6, 2024 with the record held open until September 6, 2024.

APPEARANCES: Complainant Lisa Ann Gillingham appeared on her own behalf. Registrar of Contractors Investigator Mike Springer appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Pleasure Spas Inc. (Respondent) is the holder of License Nos. 166025, 201430 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 2, 2022, Lisa Ann Gillingham (Complainant) agreed to have Respondent install a pool, in ground spa and firepit at her home in Vail, Arizona. The contracted amount was $90,200.00, and Complainant paid the same.

On or about March 18, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on April 30, 2024.

Investigator Springer then issued a Written Directive on or about May 1, 2024, that provided in pertinent part 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 May 17th, 2024.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - New pool construction has a 5-foot crack along the top of the pool - the crack is getting bigger as I type.

Investigator’s Observation: There are two large cracks where the edge has separated from the decking on either side of the filter area. Complainant states during construction the forms failed in these areas and a cold patch was applied. Additionally control joint cracks are poorly done and are partially filled with decking material.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - I have contacted the contractor's office several times since 1-9-2024 to repair. Contractor has not responded himself.

Investigator’s Observation: This is a general statement and not a workmanship item.

Governing Rule:

Compliance Item: 3 - To date, no repair has even been scheduled by contractor's office.

Investigator’s Observation: This is a general statement and not a workmanship item.

Governing Rule:...

(All errors contained in the original).

On May 21, 2024, 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(c); A.R.S. § 32-1154(A)(12), namely § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about June 5, 2024, Respondent e-mailed an Answer to the Registrar.

On or about June 19, 2024, a Notice of Hearing was issued setting a hearing on August 6, 2024, at the Office of Administrative Hearings, an independent state agency. A copy of the Notice of Hearing was mailed and e-mailed to Respondent’s addresses of record.

At hearing, Investigator Springer testified as to the Registrar’s involvement and the above timeline.

Complainant testified on her own behalf and testified as to the same, but also was willing to give Respondent additional time to make the repairs, and therefore wanted to keep the matter open until September 6, 2024.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on September 20, 2024. Such prior License record reflected that Respondent’s License No. 166025 was first issued on July 30, 2001, and was revoked as of September 19, 2024. License No. 201430 was first issued on February 3, 2005, and reflected that the license was revoked as of September 19, 2024.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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

The preponderance of the evidence established that the parties contract did not contain the proper statutory language in violation of A.R.S. § 32-1154(A)(12), namely § 32-1158.

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Despite the extension of time given to Respondent, no corrective work was performed. Therefore, Complainant 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 No. 166025 and 201430.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that should the Qualifying Party or any person associated with these license numbers apply for a new license, they shall provide a sample contract in accordance with Arizona statutes.

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, September 20, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Pleasure Spas Inc.

DBA: Pleasure Pools

[email redacted]

Lisa Gillingham

[email redacted]

By: OAH Staff