ALJDEC decisions subject to certification as final

2022A-01196-CHC-ROC · Registrar of Contractors · 2023-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darren Hunsaker,

COMPLAINANT

Unity Pools LLC

License No. ROC 317823,

RESPONDENT

No. 2022A-01196-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 18, 2022 and January 20, 2023.

APPEARANCES: Complainant Darren Hunsaker was represented by Joseph Aulicino. Respondent Unity Pools LLC was represented by Gordon Bueler. Registrar of Contractors Investigator Wes Ellington appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Unity Pools, LLC. (Respondent) is the holder of License No. 317823 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 10, 2021 Darren Hunsaker (Complainant) agreed to have Respondent build a pool and surrounding decking at his residence. The total cost was to be $193,160.00.

On or about February 11, 2022, the Registrar received a Complaint containing 17 items against Respondent from Complainant alleging poor work with respect to project.,

The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection was performed on March 25, 2022.

Investigator Ellington then issued a written directive on or about April 8, 2022, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 27, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1. Contract doesn't follow A.R.S 32.1158.01 took 30% draw twice and doesn't have a finish date.

Investigator’s Observation: The contract/estimate does not reflect the required draws as required by A.R.S 32.1158.01. The required draws to be listed in the contract are:

*Not more than 15% at execution of contract.

*Not more than 25% after excavation.

*Not more than 25% after steel, plumbing, and shotcrete -plus any written change orders.

*Not more than 25% after decking -plus any written change orders.

*Remaining sum plus any written change orders prior to interior finish.

The Respondent has been issued the appropriate warning letter for this violation and will need to correct his contracts for all future jobs. A.R.S 32.1158.01 is a requirement of the contract. The amounts actually collected are not enforceable by the ROC as this constitutes a contractual dispute that the ROC has no jurisdiction on. Any remaining draws will need to follow the above listed payment structure.

Governing Rule: A.R.S 32.1158.01

Complaint Item: 2. Working outside scope of ROC license, landscaping, bbq and fireplace.

Investigator’s Observation: Verified. The Respondent has been issued the appropriate warning letter and will need to issue the Complainant change orders for the out of scope work that has not been started. Work that has been started will need to be completed by a licensed subcontractor. Since the Respondent is not properly licensed to do this work, the two parties will need to come to an agreement for a resolution.

*NOTE: The fireplace is allowable since it is part of the pool.

Governing Rule: ARS § 32-1154(A) 16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

Complaint Item: 3. Working outside scope of ROC license by running a gas line to the fireplace and without a permit.

Investigator’s Observation: The Respondent is not out of scope since the fireplace is part of the pool. The Respondent will need to obtain the required permit and complete all associated inspections to complete the gas line permit.

Governing Rule: Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Complaint Item: 4. Running said gas line without proper specs and using an unlicensed contractor.

Investigator’s Observation: The Respondent agreed that he unknowingly used an unlicensed person to run the gas line and has now been issued a warning letter for aiding and abetting an unlicensed person. When obtaining the required permit for this gas line, the Respondent may either do any required work himself (B-5 license permits this) or use an appropriately licensed subcontractor.

Governing Rule: A.R.S. § 32-1154(A)(9) (a) Aiding or abetting a licensed or unlicensed person.

Complaint Item: 10. Plumbing of Baja cleaner and bubblers incorrect.

Investigator’s Observation: Verified. The Respondent will need to correct the installation to meet the manufacturer’s installation instructions and design plan.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Addendum Items:

Complaint Item: 19A. No permit pulled for the Pergola, the structural base is the built in BBQ.

Investigator’s Observation: The Respondent is not licensed to construct pergolas, or licensed as a general contractor to sub this work out. The Respondent has been issued the appropriate warning letter for contracting beyond the scope of his license. Since the pergola work has not begun, the Respondent will write the required change order to remove this from the contracted work.

Governing Rule: ARS § 32-1154(A) 16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

(All errors contained in the original).

Investigator Ellington conducted a Compliance Jobsite inspection on May 2, 2022. In his notes regarding the same included the following:

Compliance Findings:

Complaint Item: 1. Contract doesn't follow A.R.S 32.1158.01 took 30% draw twice and doesn't have a finish date.

Investigator’s Observation: The contract/estimate does not reflect the required draws as required by A.R.S 32.1158.01. The required draws to be listed in the contract are:

*Not more than 15% at execution of contract.

*Not more than 25% after excavation.

*Not more than 25% after steel, plumbing, and shotcrete -plus any written change orders.

*Not more than 25% after decking -plus any written change orders.

*Remaining sum plus any written change orders prior to interior finish.

Compliance Findings: The Respondent took no further unauthorized draws.

CORRECTED

Complaint Item: 2. Working outside scope of ROC license, landscaping, bbq and fireplace.

*NOTE: The fireplace is allowable since it is part of the pool.

Compliance Findings: This was not completed by the Respondent.

NOT CORRECTED

Complaint Item: 3. Working outside scope of ROC license by running a gas line to the fireplace and without a permit.

Compliance Findings: The permit for this was not obtained by the Respondent.

NOT CORRECTED

Complaint Item: 4. Running said gas line without proper specs and using an unlicensed contractor.

Compliance Findings: The work was not completed since the permit was not obtained.

NOT CORRECTED

Complaint Item: 10. Plumbing of Baja cleaner and bubblers incorrect.

Investigator’s Observation: Verified. The Respondent will need to correct the installation to meet the manufacturer’s installation instructions and design plan.

Compliance Findings: the work was started, but not completed.

NOT CORRECTED

Addendum Items:

Complaint Item: 19A. No permit pulled for the Pergola, the structural base is the built in BBQ.

Respondent will write the required change order to remove this from the contracted work.

Compliance Findings: No change order was offered to the Complainant.

NOT CORRECTED

(All errors contained in the original).

On May 9, 2022, the Registrar issued a Citation against Respondent, charging possible 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).

On or about May 25, 2022, Respondent, through Travis Scott, e-mailed an Answer to the Registrar, indicating that the matter was being handled by Complainant’s attorney and himself.

On or about June 16, 2022, a Notice of Hearing was issued setting a hearing on July 26, 2022, at the Office of Administrative Hearings, an independent state agency.

After a couple of continuances, hearings on the matter were held on October 18, 2022 and January 20, 2023.

At hearing, Investigator Ellington testified as to the Registrar’s involvement and the above timeline.

Investigator Ellington testified that as to some of the items Warning Letters were issued to Respondent instead of a Citation. As to the other remaining items, Investigator Ellington testified that a permit was never obtained, and the Baja cleaner/bubblers item were not fully repaired thus justifying an (A)(22) citation.

Further, Investigator Ellington testified that he gave sufficient time to complete the Directive. He also testified that Complainant did not want to give Respondent additional time to complete the Directive, despite Respondent requesting a 48 hour extension of time on April 28, 2022.

Complainant testified on his own behalf and called William David Roberts as a witness. He also submitted 17 exhibits into evidence.

Mr. Roberts testified that the workmanship was improper as to the cleaning system. He testified that per the manufacturers’ instructions in Exhibit 14, the initial cleaner installation was performed incorrectly as there were only 3 cleaner heads installed instead of the five per the instructions. Mr. Roberts also testified that to properly repair the same could take 10 days to two weeks.

Mr. Hunsker testified that it was his belief that the request for the permit was not submitted until January 26, 2022, approximately 20 days after the gas line was installed. Further, Mr. Hunsaker was concerned that the permit information listed him as the “licensed professional.” In addition, it was Mr. Hunsaker’s understanding that no new permit had been submitted.

As to the corrective work on the pool, Mr. Hunsaker testified that Mr. Scott reached out on April 20, 2022, and informed him that his workers would be at the jobsite on April 25, 2022. Mr. Hunsaker testified that on the 25th, workers came for 2 hours and left. He testified that Respondent’s workers then came back on the 26th and worked for an additional 3 hours, but the repairs had not been completed. Mr. Hunsaker testified that on April 28, 2022, he received a text message from Tyler Nelson, a representative for Respondent, that the plumber would be coming the next day. Mr. Hunsaker testified that while he allowed the plumber to come and inspect the jobsite, he would not allow any work to occur until he conferred with Investigator Ellington about an extension. Mr. Hunsaker testified that he denied the request for an extension of time because he felt there was no true attempt to properly repair the cleaning system and bubblers.

Too, Mr. Hunsaker testified that a 3⁄4 inch poly pipe was installed instead of a the 1 inch yellow poly pipe per the plans, which had not been repaired or replaced, and the fireplace had not been completed, despite Respondent’s license allowing for the same.

Mr. Hunsaker also testified that he believed that Mr. Scott’s response to the Registrar’s Citation was untruthful as he was not working on a settlement, and also that it was submitted a day late.

Respondent offered the testimony of Travis Scott. Mr. Scott was the Respondent’s owner and qualifying party. Mr. Scott testified that he had built between 100-150 pools during his 5 years in the business.

Mr. Scott testified that while he improperly received the draws under the statute, the total percentage he received was less than the statutory requirements. Also, Mr. Scott testified that he eliminated the charges for the landscaping, BBQ and pergola to satisfy the Directive requirements.

As to the permit issue, Mr. Scott testified that while he applied for the permit late, it was his understanding that the permit was ultimately approved but not issued by the Queen Creek, as he believed that Mr. Hunsaker requested that the permit be put on hold.

As to the pool repairs, the manufacturer’s representative came out to marked where two additional bubblers should be installed, and that his workers started chipping away at the old ones to perform the repairs. Mr. Scott testified that he declined to do the plumbing work himself because he did not want any further problems with Mr. Hunsaker, so he hired a plumber to perform the work. Mr. Scott testified that the plumber was supposed to commence work on the 27th but had an emergency situation on another job. Mr., Scott believed that the pool would have been timely repaired but for this emergency.

Further, Mr. Scott admitted that the incorrect gas pipe was installed, and that he failed to fully complete the Directive within the allotted time period.

Administrative notice is taken of Respondent’s prior License record on February 6, 2023. Such prior License record reflected that Respondent’s License No. 317823 was first issued on February 8, 2018, and reflected that there was one open complaint, namely the present complaint, and one resolved/settled case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was no dispute that work began before a permit was obtained. The gas line installed was 3⁄4 inch when a 1 inch line was required, and the fireplace was not completed. Further, the Baja cleaner and bubblers were not installed according to the manufacturer’s instructions and design plan. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established, and Mr. Scott admitted, that Respondent failed to complete the corrective work following the Directive being issued. There was no permit issued during the corrective work period and as such the gas line and fireplace were never repaired. Further, there was no dispute that the pool repairs were not fully completed. Therefore, Complainant 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).

Given the above, while Mr. Scott waited to a week before to schedule the repairs, he did make an effort to repair the same. Further, while Mr. Hunsaker was well within his rights to deny an extension, it certainly begs the question as to why he would not allow the plumber to make the repairs a day later to have a functioning pool. It was also clear that Mr. Scott made several missteps as far as the permitting process, and the contract issues. However, that does not warrant a revocation of Respondent’s license as requested by Complainant.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 317823 for a period of eight (8) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 30 days from the date of that certification.

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-137160-45720000Done this day, February 6, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Joseph Aulicino

[email redacted]

Gordon Bueler

[email redacted]

By: OAH Staff

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001

-137160-45720000