ALJDEC - Licensing
2024A-11802-CHC-ROC · Registrar of Contractors · 2025-06-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jack Dunn,
COMPLAINANT,
v.
Top Notch Pool Plastering LLC,
License No. ROC 349802,
RESPONDENT.
No. 2024A-11802-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 21, 2025.
APPEARANCES:
For Complainant: Jack Dunn.
For Respondent: Christopher Aguilar.
For the Registrar of Contractors: Clifford Corlett.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Top Notch Pool Plastering LLC (Respondent) was the holder of License No. 349802 issued by the Arizona Registrar of Contractors (Registrar) on January 24, 2024.
On or about April 1, 2024, Jack Dunn (Complainant) entered into a contract with Respondent for, among other things, plaster a pool.
On or about October 22, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Cliff Corlett, who issued a Jobsite Inspection Notice on November 4, 2024 scheduling the inspection for November 14, 2024, and rescheduling it for November 21, 2024.
Both parties were present for the inspection, and on December 30, 2024, Investigator Corlett issued a Written Directive From the Registrar to Respondent.
The Written Directive required Respondent to notify Investigator Corlett of Respondent’s compliance with the directive prior to 5:00 p.m. on January 25, 2025. At the request of Respondent, a 30-day extension was granted.
On March 2, 2025, Complainant informed Investigator Corlett that no corrective work had been performed on the project.
On March 18, 2025, 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 April 1, 2025.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On April 8, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for May 21, 2025.
Respondent’s representative agreed that Respondent did no work to correct the pool during the directive period. He stated that Respondent performed the original work when it was too hot, and Complainant left the plaster exposed too long. He argued that Respondent was willing to go above and beyond to correct the work. He also stated that Respondent’s equipment was broken. He also argued that Complainant was requesting other things, such as compensation for a water bill and replacement of some gravel.
Complainant disagreed that he left the plaster exposed.
Administrative notice was taken of Respondent’s prior License record on June 2, 2025. According to that record, Respondent’s License No. 349802 was Active. There was one resolved/settled complaints against the license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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.”
Neglect, modification, or abnormal use of the contractor’s work are affirmative defenses to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” To establish the defense, a contractor must demonstrate that the neglect, modification, or abnormal use could have been material to creating the alleged deficiency of workmanship or industry standards or materially impact the work or cost required to correct the deficiency.
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). Respondent’s explanation did not excuse the workmanship.
The preponderance of the evidence did not support that Complainant neglected or unusually used the pool in a way that caused the deficiencies in workmanship
The preponderance of 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). When a Written Directive has been issued, willingness to perform corrective work is insufficient to protect a licensee from discipline.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for two days Respondent’s License No. 349802.
It is further recommended that the Registrar require Respondent to pay the sum of $200.00 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, June 9, 2025.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Jack Dunn
[email redacted]
Top Notch Pool Plastering LLC
[email redacted]
Cliff Corlett
Registrar of Contractors
[email redacted]
By: OAH Staff