ALJDEC decisions subject to certification as final

2024A-10816-RFA-LS-ROC · Registrar of Contractors · 2026-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Thomas John Cullen,

COMPLAINANT

Advantage Pool and Spa Plumbing Inc,

License No. ROC 351621,

RESPONDENT

No. 2024A-10816-RFA-LS-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: February 24, 2026.

APPEARANCES:

Complainant: Thomas Cullen

Respondent: Robert Scheller

Registrar of Contractors: Mona Baskin, Assistant Attorney General

Meridith Bell

ADMINISTRATIVE LAW JUDGE: Nedra-Su Kawasaki

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing and Hearing Packet submitted by the Registrar of Contractors. Registrar Exhibits 1-6; Appendix A-B. _____________________________________________________________________

FINDINGS OF FACT

Advantage Pool and Spa Plumbing, Inc. (Respondent) was the holder of License No. 351621 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 23, 2024, the Registrar received a Complaint against Respondent from Thomas Cullen (Complainant) alleging poor work.

After an investigation, a Written Directive was issued to correct the work. The Directive from the Registrar specified that:

Complaint Item: 4 - Electrical Conduit is the wrong size for the junction box, Too many bends, Not Glued, Not Buried and terminates in the wrong location.

Investigator’s Observation: There were no plans, specifications and or a contract provided with this complaint to be able to determine the Respondents scope of work. This is a work in progress. Most items alleged in this case would normally be addressed during the continuing construction process. Electrical conduits are permitted to have no more than 360 degrees of bends between pull points. Conduits should be properly glued. Conduit should be properly buried beneath the concrete deck. There is no documentation stating Respondent was to establish a "finish grade" on which to pour the concrete deck.

RESPONDENT SHOULD PROPERLY GLUE CONDUIT AND INSURE NO

MORE THAN 360 DEGREES OF BENDS.

Complaint Item: 6 - The Stairs are inconsistent and dangerous. The Rise varies from 13” to 7”. One is 3” and is a trip hazard.

Investigator’s Observation: Stair height vary between 8-inches, 13-inches and 12-inches. The International Swimming Pool and Spa Code section 411 specifies pool/ spa stair requirements.

SECTION 411:

SPECIAL FEATUTERS

Tread dimensions and area:

Treads shall not be more than 24-inches at the leading edge. Treads shall have an unobstructed horizontal depth of not less than 10-inches at the centerline.

RISERS:

Risers, except for the bottom riser, shall have a uniform height of not greater

than 12-inches measured at the centerline. The bottom riser is allowed to vary to the floor.

TOP TREAD:

The vertical distance from the pool coping, deck, or step surface to the upper most tread shall be not greater that 12-inches

RESPONDENTS STAIRS DO NOT COMPLY WITH CODE REQUIRED UNIFORMITY.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

(All errors contained in the original).

Respondent did not perform any corrective work.

The Registrar issued a Citation against Respondent charging possible violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(a), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation, and an administrative hearing was held. Administrative Law Judge Adam D. Stone considered all arguments and concluded that Complainant established Respondent had, in relevant part, violated the statutes as charged in the citation. The Administrative Law Judge recommended Respondent’s license be suspended for one business day.

On or about April 24, 2025, the Registrar issued its Final Decision, adopting the Administrative Law Judge’s Decision in full.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of completing or repairing the project. As part of the claim process, Complainant submitted three bids from separate contractors. The first bid to complete/repair the pool work totaled $14,350.55. The second bid to complete/repair the work totaled $38,649.40. The third bid to complete/repair the work totaled $18,300.00.

The Registrar issued a Notice of Order of Recovery Fund Denial, finding that Complainant did not have compensable actual damages. In reviewing Complainant’s claim, the Registrar determined the following:

Original Contract Price: $5,600.00

Less payment on contract: $5,600.00

Total unpaid balance: $0.00

Total Compensable Bid Amount: $4,558.00

Less monies from other sources: $4,558.00

Compensable “Actual Damages”: $0.00

The Registrar determined the bid from Horizon Custom Pools, in the amount of $14,350.55 included the necessary repairs to remedy the violations found in the Written Directive. The following repair costs included in the bid were determined necessary repairs to comply with the directive:

$2,960.00 to repair the steps;

$1,598.00 for electrical

for total compensable actual damages in the amount of $4,558.00.

The Registrar further detailed that the bid included repairs for an additional $9,117.00 which were not the basis of the violations, and were, therefore, deducted from the total bid amount of $14,350.55. The following repairs were disallowed as they did not align with the Written Directive which was the basis of the violations:

$1,645.00 for plumbing;

$3,601.00 for lights;

$2,121.00 for an auto fill; and,

$1,750.00 for a retaining wall.

The Registrar also considered that Complainant received a payout from Respondent’s bond company in the amount of $4,558.00.

Complainant requested a hearing, believing the payout was incorrect because there remained numerous defects and safety concerns not considered in the award. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

A hearing was held on February 24, 2026.

Meridith Bell testified for the Registrar that Complainant was eligible to receive an award from the Fund. She further testified in support of the documents and calculation provided in the exhibits. Specifically, that the bids submitted by Complainant included many items not within the scope of the Written Directive, which she verified with Investigator Corlett. It was determined that the only line items on the bid that were compensable were the steps and electrical. Ms. Bell testified in support of Complainant not having any compensable damages.

Complainant testified and argued only as to the underlying contract and Administrative Law Judge decision. Complainant did not testify nor argue that the calculations used to determine the award were inaccurate. On questioning, Complainant stated that he did not disagree with any part of the calculation or award amount, stating “I am fine with the award amount for those two items.”

Respondent testified only in response to the underlying contract and did not testify to the award eligibility or calculation.

Both Complainant and Respondent were repeatedly advised that the underlying contract and Administrative Law Judge decision related thereto were not within the scope of the hearing and could not be relitigated. Notwithstanding the redirection, neither party proffered testimony nor argument regarding the Fund award.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish by a preponderance of the evidence that the proposed payout from the Fund is incorrect.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

A.R.S. § 32-1132.01(B) provides, in pertinent part, as follows:

An award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

If the claimant has recovered a portion of the claimant’s loss from sources other than the Fund, the Registrar shall deduct the amount recovered from other sources from the amount of actual damages suffered.

Complainant did not proffer any documented evidence nor testimony that the award was calculated incorrectly, and therefore, did not sustain his burden of proof.

Therefore, the award provided by the Fund accurately reflected that Complainant did not have compensable damages. Accordingly, Complainant is not entitled to a payout from the Fund.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar’s decision to deny Complainant’s Recovery Fund payment, based on no compensable damages, be affirmed and Complainant’s appeal be dismissed.

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.

-54864001

001

-137160-45720000Done this day, March 27, 2026.

/s/ Nedra-Su Kawasaki

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Advantage Pool and Spa Plumbing Inc

[email redacted]

Mona Baskin Esq.

Office of the Attorney General

[email redacted]

Thomas John Cullen

[email redacted]

By: OAH Staff