ALJDEC - Licensing
2023A-00233-CHC-ROC · Registrar of Contractors · 2023-07-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dave Arsenault ,
COMPLAINANT
v.
Lakeside Pools LLC
License No. ROC 265621,
RESPONDENT
No. 2023A-00233-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 29, 2023
APPEARANCES: Complainant Dave Arsenault appeared on his own behalf. David Lake appeared on behalf of Respondent Lakeside Pools LLC. Daniel Edwards, Investigator, appeared on behalf of the Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
Lakeside Pools LLC (Respondent) is the holder of License No. 265621 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 26, 2021, Dave Arsenault (Complainant) entered into a contract with Respondent for, among other things, the construction of a pergola.
On or about January 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging failure to complete the project in accordance with plans without Complainant’s consent in a manner that was prejudicial to Complainant.
The Registrar assigned the complaint to Investigator Daniel Edwards. After a jobsite inspection, Investigator Edwards issued a written directive 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 March 10, 2023.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Pergola was started by a Sub Contractor that had his AZ Roc licence revoked and Lakeside Pools has never completed the pergola or Rain Descent water feature.
Investigator’s Observation: Pergola build appears to be nearing completion and respondent is in the process of having new permit issued for the current build. Prior City of Peoria permit no. 2103663 (applied for by respondent's subcontractor) has expired as of 1/24/2023 and a new permit is under review by the municipality (permit no. 2205078). It appears the new permit was initially applied for and denied on 11/8/2022, the current status is listed as "Applicant Contacted." Respondent reports they are making the revisions required by the city in order to have the permit be issued for the pergola and the newest revisions have been submitted. Respondent shall ensure the pergola is properly permitted and address any and all issues outlined by the city in order to pass final inspection for this work and ensure project is completed per contract and change orders.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
All errors in original.
On March 9, 2023, Investigator Edwards received an email from Respondent requesting an extension which was granted and the new compliance deadline was set for March 26, 2023.
Following the issuance of the written directive, a new permit was ordered by Respondent from the City of Peoria. The reason the initial permit was denied was:
Not built to any plans.
1. Missing Chanel "C" beam on both sides of the main runs. Detail LA01 and Detail LA06 and on the Main plan.
2. Rafter spacing is at 26" O/C, it needs to be 24" O/C the rafter count is 9 plan shows 10. The note and drawing are on the Main Plan.
3. Rain descent not done per plan, held together with plumber's tape and leveled with wood. The main plan gives a drawing of how it was supposed to be done.
4. Missing wedge anchor on East front column.
5. Westside column is not sitting flush with the deck and is leveled with washers wedged under the steel post.
6. Front steel columns already show surface rust.
In addition to the issues noted above by the City inspector, it was observed that the lattice beams at the top of the pergola are not laying flush across the top of the structure and the beams are either warped or not fastened appropriately. The appearance is irregular and inconsistent with work common to the industry.
All errors in original.
After the deadline in the directive expired, Investigator Edwards was notified some corrective work was completed by Respondent in an attempt to prepare the structure for the new inspection by the City of Peoria, however, the permit still had not cleared inspection.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(a); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Edwards testified consistently with his jobsite inspection notes, written directives, compliance jobsite inspection notes, and the citation.
Complainant testified that after the initial set of plans were rejected by the City of Peoria, Respondent reached out to AMMTec Consulting Engineers for creation of plans and engineering for a pergola with a water feature. Complainant further testified he believed the AMMTec plans were submitted to the City of Peoria. Complainant believed Respondent failed to comply with the engineering plans which he believed were submitted to the City of Peoria.
Respondent testified the plans submitted to the City of Peoria pursuant to the City inspector’s notes following the initial permit denial are the manufacturer’s plans and not AMMTec’s. Respondent admitted by the time the deadline pursuant to the written directive expired he had not completed the required repairs. Respondent testified he was still in the process of complying with the written directive. Respondent testified he was aware of the reasons why the initial inspection failed and was working to address some of the issues including replacing the laterals, modifying the sheer, and installing missing screws. Respondent further testified he installed a new header as a result of the City of Peoria’s inspection. Also, Respondent testified he attempted to complete the remaining items on the punch list outlined in the City of Peoria denial letter, however, Complainant refused to allow him access to the property to complete the repairs. Finally, Respondent testified with the work that has been completed on the pergola he believed it should pass the City of Peoria inspection.
Administrative notice is taken of Respondent’s prior License record on July 19, 2023. Respondent’s License record reflects that Respondent’s License No. 265621 was first issued on July 9, 2010, and was revoked on July 11, 2023. Respondent’s License record also reflects that there were 29 open cases, 6 complaints resulting in discipline, and 6 resolved/settled complaints against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent’s revoked license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations 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 evidence established that Respondent did not complete the project in accordance with the plans without Complainant’s consent in a manner that was prejudicial to Complainant. Respondent admitted he did not begin working on the issues associated with the permit failure which lead Investigator Edwards to recommend the issuing of a citation until after the March 24, 2023, deadline had expired. Therefore, Complainant established that Respondent departed from or disregarded the plans in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a). Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 265621.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, July 19, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Martín Quezada
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Dave Arsenault
[email redacted]
Daniel Edwards
[email redacted]
Lakeside Pools LLC
[email redacted]
By: OAH Staff