ALJDEC decisions subject to certification as final

2023A-03565-RFA-LS-ROC · Registrar of Contractors · 2024-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shirlene and Kurt Styers,

Blake Carbonatto,

David Thomas,

Ryan Smith,

Shaun Fransen,

Kari Raasch and Victor Moore,

Coty and Christopher Rudhe,

COMPLAINANTS,

Unity Pools LLC

License No. ROC 317823,

RESPONDENT.

No. 2023A-03565-RFA-LS-ROC

No. 2023A-04024-RFA-LS-ROC

No. 2023A-05305-RFA-LS-ROC

No. 2023A-05954-RFA-LS-ROC

No. 2024A-02338-RFA-LS-ROC

No. 2024A-04729-RFA-LS-ROC

No. 2024A-06352-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 12, 2024, with the record held open until December 3,

2024.

APPEARANCES: Complainants appeared on behalf of themselves. No one appeared on behalf of Unity Pools LLC (Respondent). Assistant Attorney General Mona Baskin appeared on behalf of the Arizona Registrar of Contractors (Registrar or ROC).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE:

Exhibits 1 through 10: No. 2023A-03565-RFA-LS-ROC

Exhibits 1 through 6: No. 2023A-04024-RFA-LS-ROC

Exhibits 1 through 6: 2023A-05305-RFA-LS-ROC

Exhibits 1 through 10: 2023A-05954-RFA-LS-ROC

Exhibits 1 through 6: 2024A-02338-RFA-LS-ROC

Exhibits 1 through 6: 2024A-04729-RFA-LS-ROC

Exhibits 1 through 6: 2024A-006352-RFA-LSROC

FINDINGS OF FACT

Shirlene and Kurt Styers v. Unity Pools, LLC: 2023A-03565-RFA-LS-ROC

1. Shirlene Styers, (hereinafter Ms. Styers), filed a complaint with the Registrar alleging poor workmanship on the part of Respondent, in connection with a pool construction project. See Exhibit 1, ROC-002-004.

2. The Registrar assigned the complaint to one of its investigators, Todd Anderson, (hereinafter Investigator Anderson). See Exhibit 2, ROC-005-012.

3. On or about April 19, 2023, Investigator Anderson conducted an initial job-site inspection. See Exhibit 2, ROC-005-012. Investigator Anderson discovered that Respondent performed poor and incomplete work when constructing the pool.

4. On May 9, 2023, Investigator Anderson issued a Directive directing Respondent to complete the pool construction project, by appropriate means, no later than May 25, 2023. See Exhibit 2, ROC-013-018.

5. On August 21, 2023, Investigator Anderson conducted a compliance job-site inspection. See Exhibit 2, ROC-019-048. Investigator Anderson concluded that Respondent failed to comply with the Directive. Investigator Anderson’s compliance job-site inspection notes provided, in relevant part, as follows:

Compliance 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 occured 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: As of the date of the Compliance Inspection (8/21/23), not all work had been completed. 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.

Governing Rules: ARS 32-1154(A)(22) – Failure to comply with a written directive ARS 32-1154(A)(3) - Poor Workmanship

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: As of the date of the Compliance Inspection (8/21/23), not all work had been completed. 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.

Governing Rules: ARS 32-1154(A)(22) – Failure to comply with a written directive ARS 32-1154(A)(3) - Poor Workmanship.

Errors in original only.

6. On September 28, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A) (3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A). See Exhibit 2, ROC 049-058.

7. A hearing was held on December 5, 2023 regarding the allegations made in the complaint and Citation. See Exhibit 3.

8. After the conclusion of the hearing, the assigned Administrative Law Judge (ALJ) issued a Recommended Decision concluding that Respondent violated A.R.S. §§ 32-1154(A) (3) and (22); A.A.C. R4-9-108(A). See Exhibit 3, ROC-054 to ROC-061. Based upon the violations, the ALJ recommended that Respondent’s license be suspended for three days. See id.

9. On January 19, 2024, the Registrar accepted the ALJ’s Recommended Decision and ordered that Respondent’s license be suspended on the next business day, following February 28, 2024. See Exhibit 3, ROC 062-063.

10. On or about February 4, 2024, Ms. Styers filed a claim for an award from the Registrar’s Recovery Fund (Fund). See Exhibit 4, ROC-065-068. On the claim form, Ms. Styers reported that the total amount of her contract was $193,160 and that she had paid Respondent $174,000, under the contract. See id at ROC-065. Ms. Styers submitted bids to repair the deficient work and repair costs with the claim. See Exhibit 4 at ROC-084-097.

11. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Ms. Styers was eligible for a payout from the Fund. Ms. Styers proceeded against Respondent’s bond, RLI insurance. RLI denied Ms. Styers’s claim against Respondent’s bond.

Ms. Quezada verified the amount of the contract and the amount that Ms. Styers paid to Respondent. See Exhibit 5. Ms. Quezada calculated Ms. Styers’s damages by using the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be deficient. See Exhibit 4, ROC 084-097. Ms. Quezada subtracted the amount left owing on the contract from the amount of the bid. Ms. Quezada found that Ms. Styers’s damages exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

12. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Ms. Styers and Respondent.

13. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Ms. Styers was eligible to receive a pro-rated amount of $25,000 from the Fund.

14. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Ms. Styers.

David Thomas v. Unity Pools, LLC 2023A-04024-RFA-LS-ROC

15. David Thomas, (hereinafter “Mr. Thomas”), filed a complaint with the Registrar alleging poor work and abandonment on the part of Respondent, in connection with a residential construction project. See Exhibit 1, ROC 002-003.

16. After receiving the complaint, the Registrar assigned the complaint to one of its investigators, Todd Anderson, (hereinafter “Investigator Anderson”).

17. Investigator Anderson conducted an initial job-site inspection on April 26, 2023. See Exhibit 1, ROC 004-011. Investigator Anderson discovered that Respondent did not complete the job and was not diligent in performing and completing tasks. See id.

18. On May 15, 2023, the Registrar issued a Directive to Respondent directing Respondent to complete the pool project by appropriate means, prior to 5:00 p.m. on May 31, 2024. See id at ROC-014-016.

19. On October 10, 2023, Investigator Anderson conducted a compliance job-site inspection to determine whether Respondent complied with the Directive.

See Exhibit 1, ROC-016. Investigator Anderson concluded that Respondent failed to complete construction and that the following items had not been completed:

Large format tile and grout

Coping and waterline tiles

Grading and decking

Artificial turf

Ramada lid

Install floor heads for pool

Pool equipment

Finish relocating stools in pool

Finish electric to outdoor kitchen/Pebble surface

Gas hook up

Outdoor kitchen countertops.

20. On December 25, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. § 32-1154(A) (22). See Exhibit 1, ROC 017-021.

21. A hearing was held on January 9, 2024 regarding the allegations made in the complaint and Citation. See Exhibit 1, ROC-024.

22. After the conclusion of the hearing, the assigned Administrative Law Judge (ALJ) issued a Recommended Decision concluding that Respondent violated A.R.S. § 32-1154(A) (22). See Exhibit 1, ROC-024. Based upon the violations, the ALJ recommended that Respondent’s license be suspended for five days. See id.

23. On February 22, 2024, the Registrar accepted the ALJ’s Recommended Decision and ordered that Respondent’s license be suspended on the business day following April 2, 2024. See Exhibit 1, ROC 022-033.

24. On April 15, 2024, Mr. Thomas filed a claim for an award from the Fund. See Exhibit 2, ROC-034-037. On the claim form,

Mr. Thomas reported that the total amount of his contract was $228,520 and that he had paid Respondent $194,692, pursuant to the contract. Mr. Thomas submitted a bid from Caribbean Pools to repair the deficient work performed by Respondent. See id at ROC 044-061.

25. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Mr. Thomas was eligible for a payout from the Fund. Mr. Thomas proceeded against Respondent’s bond, RLI insurance. RLI denied Ms. Thomas’s claim against Respondent’s bond.

Ms. Quezada verified the amount of the contract and the amount that Mr. Thomas paid to Respondent. See Exhibit 5. Ms. Quezada calculated Mr. Thomas’s damages by using the bid from Caribbean, a licensed contractor that appropriately addressed the items that the Registrar found to be defective. See Exhibit 2, ROC-120 – ROC-121.

Ms. Quezada subtracted the amount left owing on the contract from the amount of the bid. The difference between the two amounts exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

26. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Thomas and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Mr. Thomas was eligible to receive a pro-rated amount of $25,000 from the Fund.

27. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Mr. Thomas.

28. The matter was referred to the OAH for an evidentiary hearing.

Ryan Smith v. Unity Pools, LLC 2023A-05305-RFA-LS-ROC

29. Ryan Smith, (hereinafter Mr. Smith), filed a complaint with the Registrar alleging poor work and abandonment on the part of Respondent, in connection with a residential pool construction project. See Exhibit 1, ROC 002-003.

30. After receiving the complaint, the Registrar assigned the complaint to ROC Investigator Anderson. See Exhibit 1, ROC 004.

31. Investigator Anderson conducted an initial job-site inspection on June 12, 2023. See Exhibit 1, ROC 004-022. Investigator Anderson discovered that the pool was incomplete. See id.

32. On June 22, 2023, the Registrar issued a Directive to Respondent directing Respondent to complete the pool project by appropriate means. See id at ROC 023-024.

33. On October 17, 2023, Investigator Anderson conducted a compliance job-site inspection to determine whether Respondent complied with the Directive. See Exhibit 1, ROC 039-075. Investigator Anderson concluded that Respondent failed to correct Compliance Items 1, 6, 8, 10 through 14, 16, and 17. See id at ROC 071-075.

34. On December 27, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1154(A) (2) (b), (3), and (22), and Arizona Administrative Code (A.A.C.) R4-9-108(A). See Exhibit 1, ROC 076-080.

35. A hearing was held on March 5, 2024 regarding the allegations made in the complaint and Citation. See Exhibit 1, ROC 083-092.

36. After the conclusion of the hearing, the assigned ALJ issued a Recommended Decision concluding that Respondent violated A.R.S. §§ 32-1154(A)(3), (22), and Arizona Administrative Code (A.A.C.) R4-9-108(A) regarding Compliance Items 1, 6, 8, 10 through 14, 16, and 17, referenced in the December 20, 2023 Compliance Job-Site Inspection notes. See Exhibit 1, ROC 081-092. Based upon the violations, the ALJ recommended that Respondent’s license be suspended for five days. See id.

37. On April 30, 2024, the Registrar accepted the ALJ’s Recommended Decision and ordered that Respondent’s license be suspended on the next business day following June 9, 2024. See Exhibit 1, ROC 081-092.

38. On June 4, 2024, Mr. Smith filed a claim for an award from the Fund.

See Exhibit 2, ROC 098-101. On the claim form, Mr. Smith reported that the total amount of his contract was $193,055 and that he had paid Respondent $186,687.50, pursuant to the contract. Mr. Smith submitted bids to repair the deficient work performed by Respondent with the claim. See id at ROC 117-121.

39. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Mr. Smith was eligible for a payout from the Fund. Mr. Smith proceeded against Respondent’s bond, RLI insurance. RLI denied Ms. Smith’s claim against Respondent’s bond. Ms. Quezada verified the amount of the contract and the amount that Mr. Smith paid to Respondent. See Exhibit 3. Ms. Quezada calculated Mr. Smith’s damages by using the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be defective. See Exhibit 2, ROC-120-121. Ms. Quezada subtracted the amount left owing on the contract from the amount of the bid. The difference between the two amounts exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

40. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Smith and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Mr. Smith was eligible to receive a pro-rated amount of $25,000 from the Fund.

41. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Mr. Smith.

Blake Carbanatto v. Unity Pools, LLC: 2023A-05954-RFA-LS-ROC

42. Blake Carbanatto, (hereinafter Mr. Carbanatto), filed a complaint with the Registrar alleging poor work and abandonment on the part of Respondent, in connection with a residential pool construction project. See Exhibit 1, ROC-002-004.

43. The Registrar assigned the complaint to one of its investigators, Doug Barrett, (hereinafter Investigator Barrett). See Exhibit 2, ROC-006.

44. Investigator Barrett conducted an initial job-site inspection on June 28, 2023. See Exhibit 1, ROC- 005-046. Investigator Barrett discovered that Respondent had poor and incomplete work in connection with the pool contract. Thereafter, the Registrar issued a Directive to Respondent directing Respondent to correct several items from the complaint by appropriate means. See Exhibit 2, ROC 049-054.

45. On July 31, 2023, Investigator Barrett conducted a compliance job-site inspection. Investigator Barrett discovered that Respondent had failed to comply with the Directive. See Exhibit 2, ROC 055-097.

46. On August 3, 2023, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1154(A) (3) and (22); A.A.C. R4-9-108(A). See Exhibit 2, ROC 098-102.

47. A hearing was held on November 14, 2023 regarding the allegations made in the complaint and Citation. See Exhibit 3, ROC-104.

48. After the conclusion of the hearing, the assigned ALJ issued a Recommended Decision concluding that Respondent violated A.R.S. §§ 32-1154(A) (3) and (22); A.A.C. R4-9-108(A). See Exhibit 3, ROC-104 to ROC-112. Based upon the violations, the ALJ recommended that Respondent’s license be suspended for sixty days. See id.

49. On December 28, 2023, the Registrar accepted the ALJ’s Recommended Decision and ordered that Respondent’s license be suspended on the business day following February 8, 2024. See Exhibit 3, ROC 113-114.

50. On February 22, 2024, Mr. Carbanatto filed a claim for an award from the Fund. See Exhibit 4, ROC-117-120. On the claim form, Mr. Carbanatto reported that the total amount of his contract was $260,850 and that he had paid Respondent $223,452.50, pursuant to the contract. Mr. Carbanatto submitted bids to repair the deficient work and repair costs with the claim. See Exhibit 6.

51. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Mr. Carbanatto was eligible for a payout from the Fund. Mr. Carbanatto proceeded against Respondent’s bond, RLI insurance. RLI denied Mr. Carbanatto’s claim against Respondent’s bond. Ms. Quezada verified the amount of the contract and the amount that Mr. Carbonatto paid to Respondent. See Exhibit 5. Ms. Quezada calculated Mr. Carbanatto’s damages by adding Mr. Carbonatto’s repair costs with the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be defective. After subtracting the amount left owing on the contract, Ms. Quezada found that

Mr. Carbanatto’s damages exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

52. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Carbanatto and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Mr. Carbanatto was eligible to receive a pro-rated amount of $25,000 from the Fund.

53. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Mr. Carbanatto.

54. The matter was referred to the Office of Administrative hearings (OAH) for an evidentiary hearing.

Shaun Fransen v. Unity Pools, LLC: 2024A-02338-RFA-LS-ROC

55. Shaun Fransen, (hereinafter Mr. Fransen), filed a complaint with the Registrar alleging poor work on the part of Respondent, in connection with a residential construction project. See Exhibit 1, ROC-002-008.

56. The Registrar assigned the complaint to one of its investigators, Patricia Schuette, (hereinafter Investigator Schuette). See Exhibit 1, ROC-009.

57. Investigator Schuette conducted an initial job-site inspection on March 27, 2024. See Exhibit 1, ROC- 009-037. Investigator Schuette discovered that Respondent had performed poor and incomplete work in connection with the pool contract. Thereafter, the Registrar issued a Directive to Respondent directing Respondent to correct several items from the complaint by appropriate means. See id at ROC-046-052.

58. On May 3, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1154(A) (1), (2) (a) and (b), (3), (16), and (22); A.A.C. R4-9-108(A). See Exhibit 1, ROC 053-058.

59. Respondent failed to file a timely answer to the May 3, 2024 Citation.

60. On May 22, 2024, the Registrar issued a Final Administrative Decision and Order (Default) concluding that Respondent had violated A.R.S. §§ 32-1154(A) (1), (2) (a) and (b), (3), (16), and (22). See Exhibit 1, ROC 059-060. Through the Default, the Registrar revoked Respondent’s license effective May 22, 2024. See id.

61. Thereafter, Mr. Fransen filed a claim for an award from the Fund.

See Exhibit 2, ROC-066-069. On the claim form, Mr. Fransen reported that the total amount of his contract was $187,435 and that he had paid Respondent $169,000, pursuant to the contract. Mr. Fransen submitted bids to repair the deficient work performed by Respondent with the claim. See Exhibit 2, ROC 088-092.

62. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Mr. Fransen was eligible for a payout from the Fund. Mr. Fransen proceeded against Respondent’s bond, RLI insurance. RLI denied Mr. Fransen’s claim against Respondent’s bond.

Ms. Quezada verified the amount of the contract and the amount that Mr. Fransen paid to Respondent. See Exhibit 3. Ms. Quezada calculated Mr. Franken’s damages by subtracting the amount left owing on the contract from the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be defective. See Exhibit 2, ROC-088-ROC-092. Ms. Quezada found that Mr. Fransen’s damages exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

63. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Fransen and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Mr. Fransen was eligible to receive a pro-rated amount of $25,000 from the Fund.

64. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Mr. Fransen.

65. The matter was referred to the OAH for an evidentiary hearing.

Kari Raasch and Victor Moore v. Unity Pools, LLC: 2024A-04729-RFA-LS-ROC

66. Kari Raasch, filed a complaint with the Registrar alleging poor work and abandonment on the part of Respondent, in connection with a new pool construction project. See Exhibit 1, ROC-002-003.

67. After receiving the complaint, the Registrar assigned the complaint to one of its investigators, Mike Wiskow, (hereinafter Investigator Wiskow). See Exhibit 1, ROC-004.

68. Investigator Wiskow conducted an initial job-site inspection on June 4, 2024. See Exhibit 1, ROC-004-008. Investigator Wiskow discovered that Respondent had performed poor and incomplete work in connection with the pool contract.

69. On June 7, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1158.01 and 32-1154(A) (1), (2) (a) and (b), (3), (12), (14) (16); A.A.C. R4-9-108(A). See Exhibit 1, ROC 026-031.

70. Respondent failed to file a timely answer to the June 24, 2024 Citation.

71. On May 22, 2024, the Registrar issued a Final Administrative Decision and Order (Default) concluding that Respondent had violated A.R.S. §§ 32-1158.01 and 32-1154(A) (1), (2) (a) and (b), (3), (12), (14) (16). See Exhibit 1, ROC 032-033. Through the Default, the Registrar revoked Respondent’s license effective June 24, 2024. See id.

72. Thereafter, Kari Raasch filed a claim for an award from the Fund.

See Exhibit 2, ROC-038-042. On the claim form, Kari Raasch reported that the total amount of the contract was $221,420 and that he had paid Respondent $147,677, pursuant to the contract. Kari Raasch submitted bids to repair the deficient work performed by Respondent with the claim, along with repair costs. See Exhibit 2, ROC 053-072.

73. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Kari Raasch was eligible for a payout from the Fund. Kari Raasch proceeded against Respondent’s bond, RLI insurance. RLI denied Kari Raasch’s claim against Respondent’s bond.

Ms. Quezada verified the amount of the contract and the amount that Kari Raasch paid to Respondent. See Exhibit 3. Ms. Quezada calculated Kari Raasch’s damages by adding the costs to repair the deficient work with the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be defective. See Exhibit 2, ROC-088-ROC-092. Mr. Quezada subtracted the amount left owing on the contract from the lowest bid and the costs to repair the deficient work.

Ms. Quezada found that Kari Raasch’s damages exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

74. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Fransen and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Kari Raasch was eligible to receive a pro-rated amount of $25,000 from the Fund.

75. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Kari Raasch.

76. The matter was referred to the OAH hearings for an evidentiary hearing.

Coty and Christopher Rhude v. Unity Pools, LLC: 2024A-04729-RFA-LS-ROC

77. Coty Rhude, (hereinafter Rhude), filed a complaint with the Registrar alleging abandonment on the part of Respondent, in connection with a new pool construction project. See Exhibit 1, ROC-002-004.

78. After receiving the complaint, the Registrar assigned the complaint to one of its investigators, Robert Di Alto, (hereinafter “Investigator Di Alto”). See Exhibit 1, ROC-005-009.

79. Investigator Di Alto conducted an initial job-site inspection on July 9, 2024. See Exhibit 1, ROC-004-008. Investigator Di Alto discovered that Respondent had performed poor and incomplete work in connection with the pool contract.

80. On July 15, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent had violated A.R.S. §§ 32-1154(A) (1), (2) (b), (8), and (16). See Exhibit 1, ROC 014-019.

81. Respondent failed to file a timely answer to the July 15, 2024 Citation.

82. On August 5, 2024, the Registrar issued a Final Administrative Decision and Order (Default) concluding that Respondent had violated A.R.S. §§ 32-1154(A) (1), (2) (b), (8), and (16). See Exhibit 1, ROC 020-021. Through the Default, the Registrar revoked Respondent’s license effective August 5, 2024. See id at ROC-021.

83. On or about August 9, 2024, Rhude filed a claim for an award from the Fund. See Exhibit 2, ROC-027-031. On the claim form, Rhude reported that the total amount of his contract was $160,945 and that he had paid Respondent $135,000, pursuant to the contract. See id. Rhude submitted bids to repair the deficient work performed by Respondent with the claim. See Exhibit 2, ROC 039-050.

84. The Registrar assigned the claim to Tedi Quezada, Legal Assistant II at the Registrar. Ms. Quezada reviewed the claim and determined that Rhude was eligible for a payout from the Fund. Rhude proceeded against Respondent’s bond, RLI insurance. RLI denied Rhude’s claim against Respondent’s bond. Ms. Quezada verified the amount of the contract and the amount that Rhude paid to Respondent. See Exhibit 5. Ms. Quezada calculated Rhude’s damages by subtracting the amount left owing on the contract from the lowest bid from a licensed contractor that appropriately addressed the items that the Registrar found to be defective. See Exhibit 2. Ms. Quezada found that Rhude’s damages exceeded the maximum amount that a homeowner can receive from the Fund: $30,000.

85. On August 15, 2024, the Registrar issued a Notice of Administrative Award (Pro-Rata) to Mr. Rhude and Respondent. Through the Notice of Administrative Award (Pro-Rata), the Registrar notified the parties that Mr. Rhude was eligible to receive a pro-rated amount of $25,000 from the Fund.

86. Respondent requested a hearing regarding the August 15, 2024 Notice of Administrative Award (Pro-Rata) issued to Mr. Rhude.

87. On September 19, 2024, the Registrar issued a Notice of Hearing setting the following matters for hearing on November 12, 2024 at 9:00 a.m.:

Docket No.: 2023A-03565-RFA-LS-ROC (Shirlene and Kurt Styers v. Unity Pools)

Docket No.: 2023A-05954-RFA-LS-ROC (Blake Carbanatto v. Unity Pools)

Docket No.: 2023A-04024-RFA-LS-ROC (David Thomas v. Unity Pools, LLC)

Docket No.: 2023A-05305-RFA-LS-ROC (Ryan Smith v. Unity Pools, LLC)

Docket No.: 2024A-02338-RFA-LS-ROC (Shaun Fransen v. Unity Pools, LLC)

Docket No.: 2024A-04729-RFA-LS-ROC (Kari Raasch and Victor Moore v. Unity Pools, LLC)

Docket No.: 2024A-06352-RFA-LS-ROC (Coty and Christopher Rhude v. Unity Pools)

88. The September 19, 2024 Notice of Hearing was mailed to the parties at their addresses of record.

89. A consolidated hearing was held on November 12, 2024.

90. At hearing, the Registrar presented the testimony of Ms. Quezada.

91. No one appeared on behalf of Respondent at the hearing on November 12, 2024. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

92. At hearing, Ms. Quezada explained that she reviewed the claims in the above-entitled matters and determined the amount of actual damages for each Complainant. Ms. Quezada explained that the maximum amount that can be paid out against any one license is $200,000. Ms. Quezada initiated the pro rata process because the total amount of the potential payouts exceeded the $200,000.

Ms. Quezada determined that each Complainant was eligible for a payout from the fund in the amount of $25,000.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.

2. A.R.S. § 32-1132.01 provides:

*******

B. An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

*******

3. A.R.S. § 32-1139(A) provides:

The liability of the fund shall not exceed two hundred thousand dollars for any one residential contractor's license. If claims against the fund on behalf of any one residential contractor's license exceed two hundred thousand dollars, the claims shall be paid based on a pro rata share of the common liability, and the registrar or a court entering an order for payment after the sum of two hundred thousand dollars has been paid from the fund shall modify the order indicating that no further recovery from the fund shall be allowed.

4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

5. After review of all the evidence, the Tribunal concludes that the awards provided by the Fund properly remedy the workmanship and abandonment violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bids utilized were excessive, the Tribunal finds that the bids were, in fact, appropriate. Additionally, the Tribunal finds that each Complainant received the appropriate pro rata share of Respondent’s common liability, pursuant to A.R.S. § 32-1139(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, each Complainant shall receive a payout from the Residential Contractors’ Recovery Fund in the amount of $25,000.

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, December 13, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff