ALJDEC decisions subject to certification as final
2024A-10680-RFA-LS-ROC · Registrar of Contractors · 2026-03-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Gale Ellsworth,
COMPLAINANT,
v.
Ramos Pool Plastering & Construction LLC,
License No. ROC 334589,
RESPONDENT.
No. 2024A-10680-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 5, 2026
APPEARANCES: Assistant Attorney General Charles Hover III represented the Arizona Registrar of Contractors. Carlos Ramos appeared in person representing Respondent Ramos Pool Plastering & Construction LLC. Complainant Gale Ellsworth appeared virtually on her own behalf.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Registrar Exhibits 1 through 14; Respondent’s Exhibits.
_____________________________________________________________________
FINDINGS OF FACT
1. The Arizona Registrar of Contractors (“Registrar” or “ROC”) administers a Residentiary Recovery Fund (“Fund”). The Registrar’s Notice of Hearing provided that the issue set for determination in this matter was Respondent’s appeal of the ROC determination regarding allowing Complainant’s Fund Claim.
2. On January 23, 2026, the Registrar issued a Notice of Hearing setting this Fund matter for hearing. The Registrar mailed copies of the Notice of Hearing to the parties at the addresses of record.
3. By ORDER dated January 24, 2026, the Office of Administrative Hearings issued its ORDER by email advising the parties the hearing would be conducted virtually by videoconference or telephone via Google Meet and providing the instructions to connect to the hearing. Mr. Ramos subsequently notified the Tribunal that he would be appearing in person.
4. At hearing, the Registrar presented the testimony of Lauren Johnston, a legal assistant at the Registrar.
BACKGROUND
5. On October 15, 2024, Complainant filed a Licensed Complaint form (“Complaint”) with the Registrar alleging poor work in connection with a pool project at her home. Respondent had performed the replastering of Complainant’s pool in November of 2023. The contract amount was $8,915.00 and Respondent was paid $8,715.00.
6. The Registrar assigned Investigator Steven Avila (“Investigator”) to the Complaint and he conducted an investigation into the Complaint, including a jobsite inspection on November 5, 2024.
7. Investigator issued a written directive (“Directive) dated November 14, 2024 directing Respondent to correct Items #1 and #4 on the Complainant by appropriate means and to do so no later than December 6, 2024. Items #1 and #4 dealt, respectively, with rough areas where dark-colored debris was stuck on the pool plaster and a repaired patch that did not match, i.e., was darker than, the color of the pool plaster.
8. Respondent performed corrective repairs on December 20, 2024.
9. At a Compliance inspection on March 6, 2025, Investigator determined that Item #1 had been corrected appropriately but that Item #4 had not been corrected appropriately. Investigator described Item #1 as follows:
Locations at which there was material present in the bottom of the pool interior was remedied. Patch was barely visible at the time of the compliance inspection.
Investigator described Item #4 as follows:
At the time of the compliance inspection an attempted repair was made. The location of the smaller gray patch now contains a more visible large gray repair. The repair can now be easily seen from the pool deck as shown in Compliance photos #4, #5 and #7.
10. On March 18, 2025, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1132(A)(3), namely Ariz. Admin. Code R4-9-108(A) and of Ariz. Rev. Stat. § 32-1132(A)(22).
11. The matter was not resolved informally between the parties and was noticed for administrative hearing.
12. Following an administrative hearing on June 20, 2025, an Administrative Law Judge issued an Administrative Law Judge Decision on July 9, 2025, finding that the evidence of record demonstrated that Respondent had violated Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and Ariz. Rev. Stat. § 32-1154(A)(22).
13. On July 28, 2025, the Registrar issued a Final Administrative Decision and Order accepting the Administrative Law Judge Decision, thus determining that Respondent had violated the cited statutory provisions and imposing disciplinary action of a 2-day suspension.
RECOVERY FUND CLAIM
14. On or about August 5, 2025, Complainant filed a Recovery Fund Claim (“Fund Claim”). Complainant submitted relevant information for consideration of the Fund Claim, including the following bids from licensed contractors:
a. Captain Pools – $6,260.00 to resurface the pool (demolish existing pool plaster and resurface with new pool plaster) and include new returns and drain covers;
b. American Heritage Pool Company – $10,480.00 to chip out the existing plaster and replace with mini pebble, replace the waterline with new tile, and install a new auto fill; and
c. Shasta Pools & Spas – $10,189.00 to remove existing plaster, replace all fittings, install a Pentair pool drain, install a 49’ hand rail, install waterline tile, and resurface the pool.
15. As is their practice, the ROC legal assistant who processes a Fund claim reaches out to the investigator for review of an applicant’s bids to assure that any bid considered addresses only the uncorrected Directive items. In this case, Ms. Johnston contacted Investigator Avila regarding the presented bids and the Directive items asking whether the repairs should only cover the patches and not demo/resurface the pool plaster.
16. Investigator Avila initially responded as follows:
That is a tough one because I assumed she could probably find someone to do a better patch but I am not sure a second contractor would want to take on that liability. Let me reach out to another investigator who used to do pool interiors and see what he says if a patch could be done.
Investigator Avila then indicated as follows:
I kind of knew the bids would come in as full interiors because a second contractor is not going to want to do repairs but I will get back to you with what I find out.
Finally, Investigator Avila indicated as follows:
I would say that the scope of repairs even if it’s a full plaster replacement should reflect just the plaster and probably drain and return as the directive did not address any additional repairs needed.
17. On December 31, 2025, the Registrar notified the parties regarding the determined Administrative Award from the Fund. The Registrar determined that Complainant had sustained compensable actual damages in the amount of $6,060.00.
18. On January 7, 2026, Respondent filed an appeal regarding the determination and requested an administrative hearing. Respondent noted that, when he had returned to repair the Directive items, approximately one year after installation, the pool was heavily soiled and discolored, which he attributed to Complainant’s self-maintenance of the pool. Respondent posited that the quality of his repair work was not in question just the non-matching color of plaster repair patches; he further indicated that plaster repair patches will not match due to age, chemical uses, and water conditions of a pool.
19. Respondent included various photographs of his repairs with his appeal. Photographs depict Respondent’s replastering work in November 2023. Photographs depict the condition of the pool prior to corrective repairs. Photographs depict the Respondent’s December 2024 patch repairs.
20. Respondent included multiple text messages between he and Complainant regarding: how the two repair patches looked “soooo much better” in December 2024; her concerns in March 2025 regarding the patches’ appearance as the patches aged; his responsive suggestion that she do an acid wash; and, his reminder that she had watched him use the same material to make both patches.
21. Complainant was eligible for a Fund Claim, having met all the statutory criteria.
22. The Registrar’s witness testified regarding her review of the Fund Claim and the her determination of the appropriateness of an ROC Fund Claim award.
23. Respondent argued that the ROC should not award a replastering of a pool unless the installed plaster itself had failed, i.e., had a structural failure and the plaster was damaged (such as chipped or flaking) or the pool was leaking. Respondent argued that his repairs were both watertight and appropriately sealed, that there were no defects in the plaster, and that there was no reason to replaster the pool over the 2 small patches that met plaster standards. Respondent argued that Complainant’s issue was simply aesthetics and that the resulting discoloration was due to Complainant’s own self-maintenance. Respondent argued that Complainant should not be awarded the determined $6,060.00 amount for a full replastering.
24. Complainant posited only that the repair results were not acceptable.
25. The Registrar argued that the National Plasterers Council standards only applied to the original new plastering and not to repairs. The Registrar argued that ROC had not said the pool was not usable but only that the patches had not been done appropriately and had not met “standards.” The Registrar further argued that the ROC Investigator gave consideration to a possible lesser repair in considering whether another contractor would agree to try to repair the patch, but that “industry standards” necessitated a full replastering.
26. Registrar workmanship standards regarding pools and interiors spring forward following a 30-day time frame after the pool is filled with water and the equipment is in operation; the 30-day time frame ends the “substantial completion” period. Per Registrar standards, there should be no rough surfaces before substantial completion and, after substantial completion, the contractor should not be responsible for roughness caused by “mineral deposits on pool surface and stains and/or roughness caused by pool water chemicals.” Further, as to any excessive shading or mottling, the Registrar workmanship standards indicate that an owner should notify the contractor at the time of substantial completion of any such conditions. Finally, the Registrar workmanship standards indicate that normal variations in pool water chemistry and ultraviolet action does cause discoloration or shading of the plaster and such discoloration is considered normal.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Ariz. Rev. Stat. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .”
Ariz. Rev. Stat. § 32-11132.01(C) provides:
If the claimant paid a deposit or down payment and no actual work is performed or materials are delivered, the claimant's actual damages are the exact dollar amount of the deposit or down payment plus interest at the rate of ten percent a year from the date the deposit or down payment is made ...
The Registrar’s final decision in the underlying workmanship/disciplinary case giving rise to the instant matter establishes that Respondent performed no construction work and that Complainant had contracted directly with, and paid, trades who performed the construction work on the project.
When the Registrar has calculated the amount of a complainant’s actual compensable damages and has proposed a payout from the Fund to which a complainant is entitled, the calculation is a prima facie showing of the amount that a complainant is entitled to recover as a payout from the Fund.
Having appealed the Award, the Respondent bears the burden of proof to establish that the Registrar’s determination of eligibility for access to, and the determined payout from, the Fund is incorrect or inappropriate 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.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
The weight of the hearing evidence demonstrates that the Registrar correctly determined that Complainant is eligible for access to the Fund pursuant to statutory criteria.
The Fund considers estimates based on the general principle that correcting a contractor’s work may sometimes require the removal and/or replacement of construction work that resulted in improper installation or poor workmanship. In his final comments regarding the scope of repairs, Investigator Avila did not assert that the scope of repairs was required to be a full replaster. In this case, evidence came to light that supports a conclusion that the three estimates herein were not reasonable and far exceeded the scope of the Directive-determined corrective repair work. Based on the hearing record, Respondent established by a preponderance of the evidence that the determined $6,060.00 Fund award amount to replaster the entire pool was inappropriate based on the Registrar’s workmanship standards. The Fund award of $6,060.00 far exceeds the actual damages of the repairs called for in the Directive. The evidence established that the December 2024 corrective repairs were made by Respondent and Respondent utilized the same plaster to make the repairs on both areas in the pool. The evidence established that the repairs were successful as to one area in the pool but, for unknown reasons, not so successful at the second area in the pool. Pursuant to the Registrar’s workmanship standards, Respondent is most likely not responsible for the subsequent shading of the one repair, which was more likely caused due to variants of pool chemicals, cleaning, and ultraviolet light.
Herein, the Administrative Law Judge concludes that the Complainant is only eligible for an award from the Fund that will pay for the Directive-determined corrective repairs to the pool plaster. Thus, the $6,060.00 Fund award is not supported by the evidence. Accordingly, the Tribunal concludes that Complainant is not entitled to a payout from the Fund in the amount of $6,060.00.
RECOMMENDED ORDER
In view of the foregoing,
IT IS ORDERED Respondent’s appeal is granted.
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, March 30, 2026.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Registrar of Contractors
Charles Hover III
Assistant Attorney General
[email redacted]
Attorney for the Arizona Registrar of Contractors
Ramos Pool Plastering & Construction LLC
[email redacted]
Gale Ellsworth
[email redacted]
By: OAH Staff