ALJDEC - Licensing

2024A-05402-CHC-ROC · Registrar of Contractors · 2024-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Piper,

COMPLAINANT,

v.

Pleasure Spas Inc.

License No. ROC 166025 and 201430,

RESPONDENT.

No. 2024A-05402-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Convened and concluded on August 30, 2024.

APPEARANCES:

For Complainant: Jason Piper.

For Respondent: Failed to appear.

For the Registrar of Contractors: .Investigator John Smith

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Pleasure Spas Inc. (Respondent) was the holder of Licenses numbered 166025 and 201430 issued by the Arizona Registrar of Contractors (Registrar) on July 30, 2001, and February 3, 2005, respectively.

On or about May 31, 2021, Jason Piper (Complainant) entered into a contract with Respondent for, among other things, installation of pool decking.

On or about May 9, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming the pool deck had splotches and poor texturing.

The Registrar assigned the complaint to Investigator John Smith, who issued a Jobsite Inspection Notice on May 15, 2024, scheduling the inspection for May 22, 2024, and a letter requesting a copy of the original contract.

Investigator Smith conducted the jobsite inspection on May 22, 2024, and Respondent was not present. Following the inspection, Investigator Smith issued a Written Directive From the Registrar to Respondent on May 22, 2024, that provided as follows:

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

Complaint Item 1: “September 20, 2023- ROC investigator Mike Springer conducted an informal inspection at my home to look at the pool.RE:

No. 2023-09117. The inspector provided notes that the craftmanship did not meet standards around entire pool. The pool company has not returned my calls to fix these issues.”

Investigator’s Observations: Verified.

Building Confidence Program 2023-09117

• Included in the Investigator’s Jobsite Inspection Notes, dated September 20, 2023.

o Areas around the pool have dark spots where repairs were attempted. Gray mortar/or grout can be seen filling the holes in the salt treatment holes of the concrete. Condition exists around entire pool. Decking is not inform, does not meet standards.

Formal Complaint 2024-05402

• Investigator’s Observations May 22, 2024

o The finish of the concrete pool deck is unsightly.

 The color is not uniform or consistent.

 The texture is not uniform.

 There are several areas of exposed aggregate

 There are areas of voids and pitting

Complaint Item 2: “Entire pool decking has splotches of mortar that are a different color in comparison to the rest of the deck.

Texture of the decking is rough shows aggerate around the entire pool. This should be smooth where people sit and walk.”

Investigator’s Observations: Verified.

Building Confidence Program 2023-09117

• Included in the Investigator’s Jobsite Inspection Notes, dated September 20, 2023.

o Areas around the pool have dark spots where repairs were attempted. Gray mortar/or grout can be seen filling the holes in the salt treatment holes of the concrete. Condition exists around entire pool. Decking is not inform, does not meet standards.

Formal Complaint 2024-05402

• Investigator’s Observations May 22, 2024

o The finish of the concrete pool deck is unsightly.

 The color is not uniform or consistent.

 The texture is not uniform.

 There are several areas of exposed aggregate

 There are areas of voids and pitting

Complaint Item 3: “Edge of coping has not been repaired. Missing chunk of concrete.”

Investigator’s Observations: Verified.

Edge of coping, at a control joint, is poorly repaired, and excessively rounded over.

The Written Directive required Respondent to notify Investigator Smith of Respondent’s compliance with the directive prior to 5:00 p.m. on June 7, 2024.

On June 7, 2024, Investigator Smith issued compliance notes, stating Respondent made no effort to comply with the Written Directive.

On June 21, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A), and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on July 6, 2024. Respondent’s Answer stated Respondent disagreed with the findings.

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

On July 24, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for August 30, 2024.

The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record.

A July 29, 2024 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.

The hearing was held via Google Meet on August 30, 2024.

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

Investigator Smith testified in support of the facts above.

Complainant testified that Respondent used the wrong salt for the decking and that the mix of colors was unsightly.

Respondent failed to appear at the Hearing.

Administrative notice was taken of Respondent’s prior License record on September 17, 2024. According to that record, Respondent’s License No. 166025 was revoked on September 12, 2024; it had 11 open cases and 4 disciplined cases. According to that record, Respondent’s License No. 201430 was revoked on September 17, 2024; it had two disciplined cases.

CONCLUSIONS OF LAW

Respondent was deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.

This matter lies within the Registrar’s jurisdiction.

Respondent’s revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense 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 preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence 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 Licenses numbered 166025 and 201430.

It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 19, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Jason Piper

[email redacted]

John Smith

[email redacted]

Pleasure Spas Inc.

[email redacted]

By: OAH Staff