ALJDEC - Licensing

2023A-03565-CHC-ROC · Registrar of Contractors · 2023-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shirlene Styers

COMPLAINANT,

Unity Pools LLC

License No. ROC 317823

RESPONDENT.

No. 2023A-03565-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 5, 2023

APPEARANCES: Complainant Shirlene Styers represented herself. Travis Scott represented Respondent Unity Pools, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: None

_____________________________________________________________________

FINDINGS OF FACT

1. On or about October 20, 2023, the Registrar of Contractors (Registrar) issued a Notice of Hearing setting the above-entitled matter for hearing on December 5, 2023 at 9:00 a.m.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

3. Through the Citation, the Registrar alleges that Respondent Unity Pools (Respondent) may have violated Ariz. Rev. Stat. sections 32-1154(A)(22) and 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108(A).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

5. Complainant Shirlene Styers (Complainant) and Respondent entered into a pool and decking construction contract for the amount of $174,000.

6. Complainant paid Respondent $193,160.00 under the contract.

7. On or about October 24, 2021, Respondent started work.

8. On or about March 17, 2022, Respondent stopped work.

9. On or about March 24, 2023, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.

10. On or about April 19, 2023, Registrar Investigator Todd Anderson conducted a job-site inspection.

11. On or about May 9, 2023, the Registrar issued a Directive to Respondent that provided, in relevant part, 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 May 25th, 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:

Complaint Item: 1 - Main issue is the lack of completion of our project and unmet promises as listed; Contract states project would be completed 4-6 months from shotcrete which occurred on Jan. 29th 2022. Travis at Unity promised multiple times both verbally and through text (can be given by homeowners) that pool would be done by summer 2022. Site manager (Tyler Nelson) said the project would be completed in "45 days on the long end". That was stated on June 1st 2022. January 11th 2023 Travis promised the homeowner that I could "shoot him in the head if the project was not finished by April 2023" (his words when asked about completion date)

Investigator’s Observation: Observed the total construction project as listed on the complaint, with a contract date of January 26th, 2022 , is yet to be completed. *Complete project by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.

R4-9-108(B) – 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.

Complaint Item: 5 - 7 months after contracted deadline the work not started or uncompleted includes but not limited to: Pool equipment (pumps cleaning system etc), pebble tech, lighting, electrical, slide finish, railing, water hook ups Decking not complete. Ramada, fire pit, BBQ planters all incomplete. Turf not even started Landscaping and lighting not complete; Work at this point is extremely slow and minimal progress is being made to work toward completion.

Investigator’s Observation: Verified. The entire construction project is still in different stages of completion. *Complete project by appropriate means. Governing Rule: ARS 32-1154(A)(3) Poor or incomplete work – A contractor shall perform all work in a professional and workmanlike manner.

Errors in original.

12. Complainant agreed to extend the Directive to July 26, 2023 to allow Respondent additional time to comply with the Directive.

13. On August 21, 2023, Investigator Anderson conducted a compliance job-site inspection. Investigator Anderson observed that Respondent had not completed the corrective work. Investigator Anderson’s compliance job-site inspection notes regarding Complaint Item 1 and 5 through 7 #1 provide, in relevant part, as follows:

The area under the Jump Wall water feature is unfinished. Additionally, some of the work that was completed did not meet minimum workmanship standards. The later installed Travertine Pavers were not of the same shading as those set months earlier and there were lippage issues throughout the deck. I observed a leak under the water feature spillway and some of the water flowing over the spillway has made it’s way onto the adjacent planter causing puddling. The colored LED lights inside the pool and spa are not synced. The spa jets do not appear to provide enough pressure. And lastly, what appeared to be either thinset or mortar was observed running down onto the Ledgerstone from under the Sheer Decent water feature and right-hand corner of the planter under a 12” x 12” end piece of Travertine.

Errors in original.

14. On September 28, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Ariz. Rev. Stat. sections 32-1154(A)(22) and 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108(A).

15. Respondent filed a timely answer to the Citation.

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. A hearing was held on December 5, 2023.

18. At hearing, Complainant testified on behalf of herself. Travis Scott testified on behalf of Respondent. Investigator Anderson testified consistently with his job-site inspection notes, the Directive, and his compliance job-site inspection notes.

19. Complainant explained that Respondent performed poor work and failed to complete the project.

20. Mr. Scott explained that he experienced material and labor shortages during the project. Mr. Scott stated that within the first year of installation, the deck typically will move. Mr. Scott believes that the remaining issues are minor.

21. Administrative notice is taken of Respondent’s prior License record on December 20, 2023. Such prior License record reflects that Respondent’s License No. 317823 was first issued on February 8, 2018, and is active. Such prior License record also reflects that one complaint has resulted in discipline against Respondent’s license. Such prior License record also reflects that there are three other open complaints and two prior resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

The Administrative Law Judge may consider Registrar’s administrative

record. See Ariz. Admin. Code § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work did not comply with the Registrar’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).

5. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, which is a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. ROC 317823 of Unity Pools LLC, shall be suspended for three 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 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.

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 21, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

By: OAH Staff

Shirlene Styers

[email redacted]

Unity Pools LLC

[email redacted]

Todd Anderson

[email redacted]