ALJDEC - Licensing

2024A-05465-CHC-ROC · Registrar of Contractors · 2024-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rosa Marquez

COMPLAINANT,

Pleasure Spas Inc

DBA: Pleasure Pools,

License Nos. ROC 166025 & 201430

RESPONDENT.

No. 2024A-05465-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 16, 2024

APPEARANCES: Rosa Marquez (Complainant) represented herself. No one appeared on behalf of Pleasure Spas, Inc. (Respondent.)

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. On or about October 2, 2023, Complainant and Respondent entered into a pool construction contract, wherein Respondent would build a new pool for Complainant for the amount of $51,728.00.

2. Complainant paid Respondent $19,157.02 pursuant to the contract.

3. On or about December 19, 2023, Respondent started work.

4. On March 11, 2023, Respondent stopped work.

5. On or about May 13, 2024, the Arizona Registrar of Contractors (Registrar) received a complaint from Complainant alleging abandonment on the part of Respondent.

6. The Registrar assigned the complaint to its investigator, John Smith (Investigator Smith.)

7. On or about May 22, 2024, Investigator Smith conducted an on-site job inspection. During the inspection, Investigator Smith discovered that Respondent failed to complete construction. Investigator Smith also observed that the contract did not include the following:

Respondent’s business address

An estimated date of completion

Contact information for the Registrar

Complainant’s right to file a complaint with the Registrar

Required elements for a pool contract listed in 1, 3, and 4 of A.R.S. § 32-1158.01

The payment schedule in the pool contract did not comply with A.R.S. § 32-1158.01(2)

8. Based upon Investigator Smith’s findings at the on-site job inspection, he issued a Directive to Respondent that provided, in relevant part, as follows:

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Dear Respondent: 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 Friday, June 7, 2024.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to complete work per contract, and to remedy the following violations by the appropriate means:

Complaint Item 1: “Husband And I tired of arguing to when this pool will be done. They are not complying with contract. We tried to work and be understanding with this company throughout this process. Work has been a stand still for last months.”

Investigator’s Observations: Verified. The contractual down payment has been paid The progress payment at completion of excavation has been paid. As stated in the contract:

• The next progress payment is not due until “Completion of Rebar”. Pool has been excavated, some plumbing is installed, some electrical is installed. No rebar work has been started.

The project is incomplete. No work has been performed since March 11, 2024. As stated in the contract: • The next progress payment is not due until “Completion of Rebar”.

Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Complaint Item 2: “From the day of contract in October 2023 the only work that has been completed is excavation and some plumbing. Pile of sand in front yard 0 to mininal communication Contract not being followed as sub trades are being use and invoices not comply with contract amount Time of expected work to be done is 6 months after permit is approved Try reaching out to owner of company with no response several phone call text messages and Email. Company has informed us of work will be done but nobody shows up. When we ask about progress or next step we are treated aggression and hostility. According to there welcome letter no steps have been met. We’ve had a big hole in our backyard for the last 7 months.” Investigator’s Observations: Verified. The contractual down payment has been paid The progress payment at completion of excavation has been paid. As stated in the contract:

• The next progress payment is not due until “Completion of Rebar”. Pool has been excavated, some plumbing is installed, some electrical is installed. No rebar work has been started. The project is incomplete. No work has been performed since March 11, 2024. As stated in the contract:

• The next progress payment is not due until “Completion of Rebar”. Governing Rule: A.R.S. § 32-1154(A)(1): Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract

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

• The contractor’s business address

• The contractor’s ROC number

• An estimated date of completion

o The contract states: For a typical pool without any complications, specialties, or modifications, we expect the construction process to take between 3 to 6 months starting from the excavation phase.

o The contract does not: Specify if this is a typical pool When the excavation may begin

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

• Contact information for the registrar

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract. Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Pool Contract

Investigator’s Observations: The respondent’s contract does not include Provisions 1, 3, and 4 of A.R.S. § 32-1158.01 The payment schedule is not in compliance with the progress payments as allowed by Provision 2. •

Payments as per provision 2:

o 15% maximum down payment

o 25% maximum payment after completion of excavation

o 25% maximum payment after completion of steel, plumbing, and concrete o 25% maximum payment after completion of decking

Payment of remaining funds before finishing interior materials or completion

• Payments as stated in the respondent’s contract:

o $5,198.00 Down payment

o 30% completion of Excavation

o 25% Completion of rebar

o 20% completion of Shotcrete

o 10% Prior to Pebble o 5% Final Payment Upon Completion

Governing Rule: A.R.S. § 32-1154(A)(12) Namely A.R.S. § 32-1158.01 Swimming pool; spa; construction contracts

REQUIRED CORRECTIVE ACTION: The respondent is to submit a contract form that complies with A.R.S. § 32-1158 and § 32-1158.01

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9. After the expiration of the Directive, Complainant informed

Investigator Springer that Respondent had performed no corrective work.

10. On June 11, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated the following statutes and rules:

Ariz. Rev. Stat. section 32-1154(A)(3) - Ariz. Admin. Code R4-9-108(A)

Ariz. Rev. Stat. section 32-1154(A)(3) - Ariz. Admin. Code R4-9-108(B)

Ariz. Rev. Stat. section 32-1154(A)(12) - A.R.S. § 32-1158

Ariz. Rev. Stat. section 32-1154(A)(12) Ariz. Rev. Stat. section 32-1158.01

Ariz. Rev. Stat. section 32-1154(A)(22)

11. Respondent filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. On July 10, 2024, the Registrar mailed a Notice of Hearing to the parties setting the matter for hearing on August 16, 2024 at 9:00 a.m.

14. A hearing was held on August 16, 2024.

15. At hearing, Investigator Smith testified consistently with the job-site inspection notes. Complainant testified on behalf of herself.

16. Complainant agreed with the findings of Investigator Smith.

17. No one appeared on behalf of Respondent at the hearing on August 16, 2024. No one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 Administrative Law Judge may consider the ROC’s administrative

record. See Ariz. Admin. Code R4-9-118.

The preponderance of the evidence shows that Respondent did not perform

the work in a professional and workmanlike manner, which is a violation of Ariz. Admin. Code R4-9-108(A), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent did not use due diligence to complete the project, which is a violation of Ariz. Admin. Code R4-9-108(B), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

6. The undisputed evidence established that Respondent’s contract did not include its business address, an estimated date of completion, a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), and contact information for the Registrar. Therefore, the Administrative Law Judge concludes that Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

7. The preponderance of the evidence shows that Respondent’s contract lacked the required elements for a pool contract found at Ariz. Rev. Stat. section A.R.S. § 32-1158.01(1),(3), and (4). Additionally, the payment schedule in Respondent’s pool contract does not comply with A.R.S. § 32-1158.01(2).

8. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend license numbers 166025 and 201430 issued to Respondent, for five days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with all of the requirements of Ariz. Rev. Stat. § 32-1158(A) and A.R.S. § 32-1158.01. If Respondent fails to provide proof that it has so revised its form contracts, it is ordered that Respondent’s license be suspended for five days.

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 Ariz. Rev. Stat. section 32-1101(A)(7), 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 5, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Rosa Marquez

[email redacted]

Pleasure Spas Inc.

DBA: Pleasure Pools

[email redacted]

By: OAH Staff