ALJDEC decisions subject to certification as final

2024A-12649-CHC-ROC · Registrar of Contractors · 2025-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Camilla Cavan,

COMPLAINANT

Aqua Shine Pool Services LLC

License No. ROC 328038,

RESPONDENT

No. 2024A-12649-CHC-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: August 29, 2025

APPEARANCES:

Complainant: Camilla Cavan

Respondent: Brandon Bush

Registrar of Contractors: Lisa Melton, Investigator

ADMINISTRATIVE LAW JUDGE: Nedra-Su Kawasaki

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Aqua Shine Pool Services (Respondent) was the holder of License No. 328038 issued by the Arizona Registrar of Contractors (Registrar) on March 8, 2020.

On or about April 27, 2023, Camilla Cavan (Complainant) entered into a contract with Respondent for, among other things, a backyard remodel.

On or about November 12, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator Lisa Melton, who sent an Allegation Letter to Respondent on November 26, 2024.

On December 5, 2024, Respondent submitted a response to the allegations. Regarding Complaint item 2, Respondent replied:

There is a margin of settling that can occur with travertine installations. We have gone over this specific line item with the customer several times and we are not disputing this complaint. The issue is that she will not allow us to repair this. We have requested this from the customer over 10 times with no response to our questions. This is documented in the email referenced in “Response #1” as “Aqua Shine Pools Mail – Leak Detection Report” in the 2nd to last paragraph, and also in text messages to the customer that I have attached screenshots for as well. If the customer will work with us on this we will correct the travertine.

Regarding Complaint item 4, Respondent replied:

The pool coping is a natural stone travertine that comes cut from the factory. The bullnose option was offered and encouraged, but turned down by the customer. She was adamant she did not want the bullnose option. I have inspected the coping and it is within industry standards of installation. I am unaware of any grout that is missing, but willing to inspect this as well.

Investigator Melton issued a Jobsite Inspection Notice on December 11, 2024, scheduling the inspection for January 22, 2025.

Investigator Melton conducted the jobsite inspection on January 22, 2025, and Respondent was present. Following the inspection, Investigator Melton issued a Written Directive From the Registrar to Respondent on February 21, 2025 that provided as follows:

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

Compliance Item 2: Pavers were not compacted properly, are moving, sinking, cracking + uneven.

Investigator’s Observation: I was shown pavers with cracks and lippage. Respondent should correct all lippage in excess of 3/16” and replace all cracked pavers. Completed work should not have excessive deviations, dips or sags over short distances.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all 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.

Compliance Item 4: Pool edge coping, sharp edges, cuts uneven, chips, grout coming off.

Investigator’s Observation: Deck and coping are travertine. Travertine naturally has holes and voids which can appear as or lead to chipping. There is no workmanship standard for chipping in coping and/or deck (pavers). There is also no workmanship standard for sharp edges or uneven cuts. Additionally, I was not shown any evidence of sharp edges, uneven cuts or loose coping. There are areas of missing grout (sand). Respondent should correct this condition by appropriate methods.

The Written Directive required Respondent to notify Investigator Melton of Respondent’s compliance with the directive prior to 5:00 p.m. on March 28, 2025.

On May 8, 2025, Investigator Melton issued a Compliance Inspection Notice, setting the inspection for May 20, 2025. During the inspection, Compliance Item 2 was deemed not completed.

On June 16, 2025, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108(B), and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on June 30, 2025. Respondent’s Answer asserted, the following:

The cracking observed is not a result of improper installation but rather a well-documented and known issue with large-format natural travertine. The selected material – 24”x24” travertine pavers at 3cm thickness – is prone to isolated cracking due to natural internal fissures, resin-filled voids, and susceptibility to stress from normal point loads and environmental expansion. These are industry-acknowledged conditions, supported by sources such as Ceramic Tile and Stone Consultants (CTaSC), BuildDirect, CreativeMaterialsCorp, and Rockstone.biz. Our installation process followed industry standards, including proper excavation, base grading, layered compaction with 1⁄4” minus AB and sand, mortared borders and polymeric joint sand. Compaction was performed with a vibratory plate compactor, and documentation in photos taken after the first investigation meeting, but prior to the final walk through with [Investigator Melton].

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On July 18, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for August 29, 2025.

The hearing was held via Google Meet on August 29, 2025.

Investigator Melton testified in support of her jobsite inspection findings, the written directive, compliance inspection findings, and the Citation. She testified that on August 14, 2025, she emailed the parties regarding whether there was a need for a pre-hearing inspection, but Complainant advised that no work had been completed and Respondent advised that no work had been completed because Complainant would not respond to Respondent’s inquiries. Investigator Melton further testified that industry standard does not allow for installation of cracked pavers. Travertine is prone to chips and cracking; however, it should not be cracked at the time of installation. Investigator Melton explained that Compliance photo #3 depicted a blue-taped “crack” that was really a fissure and had that been the only item seen, she would not have issued a written directive. However, other cracks were noted. But, Investigator Melton testified, she could not say what the cause was, as Travertine was susceptible to such cracking under heavy objects or impact. Investigator Melton noted that the compliance period ended in late March and the compliance inspection was not held until May 20, 2025. On questioning, Investigator Melton testified that she had no method of measuring compaction as that required moving tiles and ROC investigators were prohibited from performing destructive inspections. The inspection was held at around the two-year mark from installation and she did not see anything concerning regarding the compaction. Investigator Melton explained that lippage was common in the first couple years while everything settled in. Additionally, on questioning, Investigator Melton stated she was unable to say if the cracks seen at the compliance inspection were the same cracks noted at the jobsite inspection or if they were new.

Complainant testified that compaction had been an issue from the beginning. She noted that prior to this project she had had issues with the backyard sloping and not being compacted so it was a concern for her going into this project. Complainant stated it had been one problem after another with the backyard project (not specifically the issues now before the Tribunal).

Respondent testified in support of his written allegation response and Answer to the Citation. Respondent further testified that the compaction was done properly and, in fact, during the compliance period Respondent re-did the compaction and the pavers. Respondent concentrated around the fire pit and was not aware of any cracks on the coping. Respondent further reached out to the manufacturer of the pavers asking for guidance on what could be the cause of the cracking and a potential solution. The manufacturer could not explain what was causing the cracking, but stated that cracking was a known issue with that type and size of paver. Respondent testified that at the time it performed the corrective work, it did not see the cracks on the coping that Investigator Melton noted at the compliance inspection. Once it was made aware, at the inspection, Respondent attempted to contact Complainant, thereafter, to schedule a time to replace the pavers. However, despite multiple attempts, Complainant did not respond.

Administrative notice was taken of Respondent’s prior License record on August 29, 2025. According to that record, Respondent’s License No. 328038 was Active; and there was one open complaint (instant matter), no disciplined cases, and no resolved/settled complaints against Respondent’s 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.”

Statutes shall be liberally construed to effect their objects and to promote justice.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The preponderance of the evidence established that Respondent performed all work in accordance with applicable building codes and professional industry standards in compliance with A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B). Perfection is not expected; thus, a contractor’s license should not be disciplined without having an opportunity to correct deficiencies. In the instant matter, Complainant filed a complaint alleging ten deficiencies. Investigator Melton determined eight of the complaint items were issues related to work performed by contractors other than Respondent, were within standards, or were unfinished at the direction of Complainant. Investigator Melton did verify two items; one for cracks in the pavers and some lippage, and the other for some areas of missing grout (sand).

Complainant argued that it was her belief that the area was not compacted properly and was the cause of the lippage and cracked tiles. Complainant also testified that during the installation process, Respondent added more sand “until [the paver] no longer moved.” Respondent and Investigator Melton credibly testified that Travertine tiles were prone to chips and cracking. Investigator Melton testified the industry standard did not allow for installation of cracked pavers, and she did not find anything concerning about the compaction and lippage was common in the first couple years while “everything settles in.” While it was unclear what caused the cracking in the pavers, the evidence supports that the cause was not poor workmanship on the part of Respondent.

Because there is no finding of a violation of A.R.S. § 32-1154(A)(3), an analysis of a A.R.S. §32-1154(A)(22) is not required. However, in this case, the undersigned ALJ notes that although corrective work was not necessary, Respondent still took action in an attempt to comply with the written directive.

Based on considerations of the weight and credibility of the evidence and the purpose of the Registrar’s licensing statutes, the best practice in the instant matter is to dismiss the complaint altogether and decline to impose any discipline against Respondent.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar dismiss the complaint in this matter in its entirety.

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, September 21, 2025.

/s/ Nedra-Su Kawasaki

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

[email redacted]

Aqua Shine Pool Services LLC

[email redacted]

Lisa Melton

[email redacted]

Camilla Cavan

[email redacted]

By: OAH Staff