ALJDEC - Licensing

2024A-07617-CHC-ROC · Registrar of Contractors · 2025-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Audrey Wilde and Ron Wilde,

COMPLAINANTS,

Clarity Pool Service, LLC

License No. ROC 322348,

RESPONDENT.

No. 2024A-07617-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 2, 2025

APPEARANCES: Mark Saric, Esq. represented Complainants Audrey Wilde and Ron Wilde who were present. Josh Johnson appeared on behalf of Respondent Clarity Pool Service, LLC. Arizona Registrar of Contractors Investigator Todd Anderson appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Agency Record; Complainants Audrey Wilde’s and Ron Wilde’s Exhibits 7, 8, and 9

FINDINGS OF FACT

Clarity Pool Service, LLC (“Respondent”) is the holder of License Number 322348 issued by the Arizona Registrar of Contractors (“Registrar”). Josh Johnson is Respondent’s Qualifying Party and sole Member.

In or about November 2022, Audrey Wilde and Ron Wilde (“Complainants”) contracted with Respondent for Respondent to refinish their pool and construct two fountains.

On or about July 7, 2024, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Todd Anderson. After a July 31, 2024 Jobsite Inspection, Investigator Anderson issued a Written Directive to Respondent dated August 14, 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 September 20th, 2024.

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

Complaint Item: 1 - Notified contractor within 10 days of refilling pool that it was leaking water. He said wait until it's over 85 degrees. Once temps were .85 degrees I notified Josh that fountains were still leaking. He has dismissed my concerns consistently.

Investigator’s Observation: I observed moisture stains and deposits on the sides and backsides of both water features which is evidence and confirmation of internal leaks. Contractor shall repair damaged stucco on right water feature by appropriate means.

Complaint Item: 4 - Noted June 2024, both custom fountains are STILL leaking. Each fountain has a LONG horizontal crack and leaks always.

Investigator’s Observation: I observed moisture stains, deposits, and cracking on the sides and backsides of both water features which is evidence and confirmation of internal leaks. Contractor shall correct by appropriate means.

Complaint Item: 5 - Right fountain has 6 vertical cracks and is oozing calcium deposits on structure and pool deck

Complaint Item: 6 - Left fountain has 3-4 vertical cracks, all leaking and oozing white material

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 2 - June 2023, notified Josh the pipes on new pop up pump were melted flat, and air visible going in to pump, basket melted. Clarity replaced melted pipe but air leak continued. Josh said it was fine. Pop ups still blow A LOT of air.

Investigator’s Observation: The pool remodel was completed in January of 2023. The Respondent, according to the homeowner, came back in June of 2023 and replaced the melted pipe for the in-ground floor system dedicated pump. I did observe air going back into the pool through the heads and also observed air in the pump itself; however, I was unable to determine if the air in the pump was the result of poor workmanship on the part of the contractor or a failure to properly maintain the pool equipment per manufacturer's recommendations. All piping appeared to be solidly glued and tight.

Complaint Item: 3 - Several msgs to Josh about warped pop up pump lid.

He refused to fix. Now lid cannot be removed at all w/o breaking

Investigator’s Observation: At the time of the Jobsite Inspection, the homeowner ran the pump for the in-ground floor system. It appeared to function normally. I was unable to remove the lid; however, I could not determine if this was the fault of the Contractor or a failure to properly maintain the pool equipment per manufacturer's recommendations.

Complaint Item: 7 - Both fountains have excessive amount of calcium oozing through grout around multiple tiles.

Investigator’s Observation: The homeowner directed me to and was concerned with the build-up of calcium on the tiles in front of both water features. Calcium build-up is a normal occurrence on the face of a water feature below the scuppers due to the evaporation of hard pool water.

Complaint Item: 8 - Contractor team broke one pop up when reinserting and now it can't be removed to replace with new one.

Investigator’s Observation: Could not verify without the use of a particular removal tool which the homeowner was not in possession of. The pop-up appeared to function normally. Observed some damage to the head but cannot substantiate that it was caused by the negligence of the contractor.

Complaint Item: 9 - Deep end of pool: Top of tile grout has already separated from pool deck.

Investigator’s Observation: I observed cracked grout above the pool tile just below the cantilevered deck; however, checks in grouting are normal shrinkage conditions and should be maintenance responsibilities of the homeowner. Contractor should repair loose grouting or cracks in grouting one time within the first two months. This pool was remodeled in January of 2023.

All errors in original.

Before the expiration of the Written Directive, Mr. Johnson emailed Investigator Anderson requesting an extension of the deadline for compliance with the Written Directive. Investigator Anderson extended the deadline to October 22, 2024.

On or about October 28, 2024, Investigator Anderson emailed Complainants requesting a status update and was informed that Respondent was performing ongoing work. On October 31, 2024, Investigator Anderson emailed Mr. Johnson to inquire about a completion date, and on November 7, 2024, Mr. Johnson responded that all repairs would be completed by the middle of November 2024. Because Respondent appeared to be working in good faith, Investigator Anderson extended the deadline for compliance with the Written Directive to November 15, 2025.

On November 13, 2024, Mr. Johnson emailed Investigator Anderson informing him that all work was completed and provided photos and video.

On November 20, 2024, Complainants emailed Investigator Anderson expressing their dissatisfaction with the corrective work performed by Respondent.

On December 12, 2024, Complainants emailed Investigator Anderson informing him that after draining the pool, they noticed “wet spots.” Investigator Anderson advised Complainants that new items of complaint could not be addressed at a Compliance Inspection, however, he could conduct an Addendum Inspection to address new items of complaint.

On December 18, 2024, Investigator Anderson received an email from Complainants concerning the lifting of travertine tiles.

On December 20, 2024, Investigator Anderson conducted an Addendum Inspection.

On December 23, 2024, Investigator Anderson issued a Written Directive that included the Addendum items of Complaint that provided as follows:

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

Complaint Item: 4 - Noted June 2024, both custom fountains are STILL leaking. Each fountain has a LONG horizontal crack and leaks always.

Complaint Item: 5 - Right fountain has 6 vertical cracks and is oozing calcium deposits on structure and pool deck

Complaint Item: 6 - Left fountain has 3-4 vertical cracks, all leaking and oozing white material

*Addendum Item: 11 - Cracks in water feature grout due to loose tiles.

Investigator’s Observation: Verified. I observed two loose travertine tiles located on top of the west water feature which resulted in cracked grout.

Contractor shall reinstall loose tiles and make repairs to cracked grout.

*Addendum Item: 12 - Lippage on several pieces of travertine located on top of west water feature.

Investigator’s Observation: Verified. There were two tiles located on the south west corner of the west water feature which exhibited lippage in excess of 1/16”. Contractor shall correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 3 - Several msgs to Josh about warped pop up pump lid.

He refused to fix. Now lid cannot be removed at all w/o breaking

Complaint Item: 7 - Both fountains have excessive amount of calcium oozing through grout around multiple tiles.

Complaint Item: 8 - Contractor team broke one pop up when reinserting and now it can't be removed to replace with new one.

Complaint Item: 9 - - Deep end of pool: Top of tile grout has already separated from pool deck.

*Addendum Item: 10 - Water returning back into the pool through openings in the grout causing the leaks in the west water feature.

Investigator’s Observation: Not verified. At the time of the Addendum

Inspection conducted on December 20th, 2024, I was able to observe the presence of a few moisture spots on the pebble surface located just below the waterline tile; however, that is a common occurrence when draining a pool and is not necessarily a contributing factor to the moisture still seen at the back of the water features.

*Addendum Item: 13 – Cracks in water feature Travertine

Investigator’s Observation: Not verified.

All errors in original.

After the expiration of the Addendum Written Directive, Complainants emailed Investigator Anderson requesting a Compliance Inspection.

On January 29, 2025, Investigator Anderson conducted a Compliance Inspection. Investigator Anderson’s Compliance Notes state the following:

Compliance Findings:

Complaint Item: 1 - Notified contractor within 10 days of refilling pool that it was leaking water. He said wait until it's over 85 degrees.

Investigator’s Initial Observation: I observed moisture stains and deposits on the sides and backsides of both water features which is evidence and confirmation of internal leaks.

Contractor shall repair damaged stucco on right water feature by appropriate means.

Compliance Observation: Moisture stains and deposits are still present on the backsides of both water features indicating that the leak(s) have not been repaired.

Complaint Item: 4 - Noted June 2024, both custom fountains are STILL leaking. Each fountain has a LONG horizontal crack and leaks always.

Investigator’s Initial Observation: I observed moisture stains, deposits, and cracking on the sides and backsides of both water features which is evidence and confirmation of internal leaks. Contractor shall correct by appropriate means.

Compliance Observation: The cracks have been repaired (See: Items 5 & 6); however, moisture stains and deposits are still present on the backsides of both water features indicating that the leak(s) have not been repaired.

Complaint Item: 5 - Right fountain has 6 vertical cracks and is oozing calcium deposits on structure and pool deck.

Compliance Observation: Cracks were corrected

Complaint Item: 6 - Left fountain has 3-4 vertical cracks, all leaking and oozing white material.

Compliance Observation: Cracks were corrected

Complaint Item: 11 – Cracks in water feature grout due to loose tiles.

Investigator’s Initial Observation: Verified. I observed two loose travertine tiles located on the top of the west water feature which resulted in cracked grout. Contractor shall reinstall loose tiles and make repairs to cracked grout.

Compliance Observation: Cracks in grout were corrected

Complaint Item: 12 – Lippage on several pieces of travertine located on top of the water feature.

Investigator’s Initial Observation: Verified. There were two tiles located on the south west corner of the west water feature which exhibited lippage in excess of 1/16” Contractor shall correct by appropriate means.

Compliance Observation: Tile lippage issue was corrected

All errors in original.

Thereafter, Investigator Anderson forwarded the Complaint 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 A.R.S. § 32-1154(A)(22).

Respondent timely filed a written Answer to the Citation and the matter was referred to the Office of Administrative Hearings, an independent State agency, for an administrative hearing.

Investigator Anderson testified consistently with the findings contained in his Jobsite Inspection Notes, Written Directive, Addendum Written Directive, and Compliance Notes. Investigator Anderson referenced the photographs he took during his inspections that illustrate the deficiencies in Respondent’s scope of work. Investigator Anderson testified that the photographs depict calcium bleeding through the fountain structures and that such is evidence of an internal leak. The photographs further depict moisture seeping from the structures. Investigator Anderson testified that an appropriate repair would have included Respondent locating the source of the moisture and to repair the leak and the surrounding areas. Investigator Anderson testified that the loose tile and lippage was corrected by Respondent, as well as the cracks.

Ms. Wilde testified that the project was completed in January 2023, and that the issues with the fountains have been ongoing since February 2023. Ms. Wilde testified in detail concerning her correspondence with Mr. Johnson informing him of the issues and requesting that he make the appropriate repairs. Ms. Wilde testified that as of the hearing date, the water staining continues.

Mr. Johnson acknowledged the issue and testified that Respondent went through extensive testing, including pressure testing, using camera scopes, removing the tie, installing vents, and water proofing. Mr. Johnson testified that he has never been in a situation where he could not determine the cause of the moisture. Mr. Johnson acknowledged that he remains unable to determine the cause of the leaking and testified that he is “at a loss as to why this is happening,” that he has “done everything to try to find and take care of the issue,” and “does not know where the water is coming from.”

Administrative notice is taken of Respondent’s prior License record on April 9, 2025. Such prior License record reflects that Respondent’s License Number 322348 was first issued on October 17, 2018, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and no complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

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 standards. Therefore, Complainants established that Respondent did not complete the project 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 did not complete the corrective work following the Written Directives being issued and acknowledged such. Further, Respondent failed to establish any affirmative defense to 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 suspend Respondent’s License Number 322348 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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 (30) 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.

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, April 15, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

Clarity Pool Service, LLC

[email redacted]

Mark G. Saric, Esq.

Resolvere Law, PLLC

[email redacted]

Audrey and Ron Wilde

[email redacted]

Todd Anderson

[email redacted]

By: OAH Staff