ALJDEC - Licensing
2025A-07622-CHC-ROC · Registrar of Contractors · 2025-12-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Donald Joesten,
COMPLAINANT
v.
Dolphin Pool Construction Company Inc.,
License No. ROC 094365,
RESPONDENT
No. 2025A-07622-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 11, 2025
APPEARANCES:
Complainant: Donald Joesten
Respondent: Benjamin Ruiz
Registrar of Contractors: Lazaro Bernal, 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
Dolphin Pool Construction Company, Inc. (Respondent) was the holder of License No. 094365 issued by the Arizona Registrar of Contractors (Registrar) on August 10, 1992.
In August 2024, Donald Joesten (Complainant) entered into a contract with Respondent for, among other things, construction of a pool.
On or about August 1, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Albert Bernal, who issued a Jobsite Inspection Notice on August 6, 2025, scheduling the inspection for August 26, 2025.
Investigator Bernal conducted the jobsite inspection on August 26, 2025, and Respondent was present. Following the inspection, Investigator Bernal issued a Written Directive From the Registrar to Respondent on September 10, 2025, that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 4: sidewalk pavers were also damaged by contractor Investigator’s Observations: Verified. I noted that multiple the pavers were stained and / or dirty with an unknown residue. It appears there was an intent to clean the pavers in question prior to this jobsite inspection; however; there were multiple pavers that showed the residue on the surface. The Responded is aware of the issue. The Respondent shall correct by appropriate means.
The Written Directive required Respondent to notify Investigator Bernal of Respondent’s compliance with the directive prior to 5:00 p.m. on September 26, 2025.
On September 30, 2025, Investigator Bernal issued a Compliance Inspection Notice, setting the inspection for October 8, 2025. During the inspection, Compliance Item 4 was deemed not completed.
On October 20, 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(A) and A.R.S. § 32-1154(A)(22).
Mr. Ruiz, on behalf of Respondent, submitted an Answer to the Citation on October 21, 2025. Respondent’s Answer asserted that after Respondent’s initial correction of the complaint item, a pebble sheen crew stained some of the pavers during their work. On October 17, 2025, Respondent removed all the pavers and replaced them with new ones. Mr. Ruiz further noted that Respondent had done its best to make Complainant happy, but Complainant was verbally abusive—using racial and homophobic slurs.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On November 5, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for December 11, 2025.
The hearing was held via Google Meet on December 11, 2025.
Investigator Bernal testified in support of his jobsite inspection findings, the Written Directive, compliance inspection findings, and the Citation. Investigator Bernal testified that a prehearing inspection was not completed due to scheduling conflicts.
Complainant testified in support of Investigator Bernal’s findings and testimony. Additionally, Complainant stated that Respondent did not tell the truth. On questioning, Complainant testified that on October 17, 2025, all pavers were completely removed and replaced, and “they are back to their original form.”
Mr. Ruiz testified in support of his Answer. Specifically, that Respondent corrected the pavers after the jobsite inspection. However, the pebble sheen crew came through after Respondent’s corrective work, and the pavers were stained again. Mr. Ruiz testified that Respondent believed they had complied with the directive as required. After the compliance inspection revealed that some pavers were still not corrected, Respondent scheduled with Complainant to remove and replace all the pavers, which Respondent completed on October 17, 2025.
Administrative notice was taken of Respondent’s prior License record on December 11, 2025. According to that record, Respondent’s License No. 094365 was Active; and there was one open complaint (instant matter), no disciplined case, and one resolved/settled complaint 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.”
The preponderance of the evidence did not establish 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).
The preponderance of the evidence did not establish 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).
Construction is not a perfect art, and a contractor must be afforded an opportunity to correct deficient work before the license is subject to discipline. While the compliance deadline set forth in the Written Directive gives rise to an expectation that the work will be undertaken and completed in a timely manner, where a contractor is afforded an opportunity to continue corrective work following that deadline, those efforts must be considered before determining whether a violation warrants discipline of the license. In this case, Respondent’s post-deadline work resolved all the issues in the directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2025-07622 against Respondent’s License No. 094365.
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, December 22, 2025.
/s/ Nedra-Su Kawasaki
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Albert Bernal, Investigator
Registrar of Contractors
[email redacted]
Donald Joesten
[email redacted]
Dolphin Pool Construction Company Inc.
[email redacted]
By: OAH Staff