ALJDEC - Licensing

2023A-04024-CHC-ROC · Registrar of Contractors · 2024-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Thomas

COMPLAINANT,

Unity Pools LLC

License No. ROC 317823

RESPONDENT.

No. 2023A-04024-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 9, 2024

APPEARANCES: Mark G. Saric, Esq. represented Complainant David Thomas. No one appeared on behalf of Respondent Unity Pools LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 42.

_____________________________________________________________________

FINDINGS OF FACT

On or about April 14, 2022, Respondent Unity Pools LLC agreed to install a

pool at the home of Complainant David Thomas for $228,520.00. Complainant paid Respondent $194,242.00 for the project.

On or about June 21, 2022, Complainant started work.

On or about March 23, 2023, Complainant stopped work.

On or about April 11, 2023, Complainant filed a complaint with the Arizona

Registrar of Contractors (Registrar or ROC) alleging abandonment and poor work on the part of Respondent.

On April 26, 2023, Registrar Investigator Todd Anderson conducted a job-site

inspection. Investigator Anderson found that Respondent had failed to completely install the pool. Specifically, Investigator Anderson found that the following items were incomplete:

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

Finish gas hook-up

Outdoor kitchen countertops

On or about May 16, 2023, the Registrar issued a Directive to Respondent to

correct the following items, by appropriate means, no later than May 31, 2023 at 5:00 p.m.:

Complaint Item: 1 - Multiple Stops

Investigator’s Observation: Observed a new pool construction project which was started on June 21st, 2022 with long periods of no work being accomplished.This job is not a total abandonment, but contractor is not completing the job, he is not being diligent in performing and completing tasks.

Governing Rule: 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 2 – Abandonment

Investigator’s Observation: Observed a new pool construction project which was started on June 21st, 2022 with long periods of time of no work being accomplished. This job is not a total abandonment, but contractor is not completing the job, he is not being diligent in performing and completing tasks.

7. On July 14, 2023, Investigator Anderson conducted an informal compliance inspection to discuss the remaining work and timelines for completion. Respondent’s representative promised to send a list of work that needed to be completed to Investigator Anderson and Complainant. On July 19, 2023, Investigator Anderson received the list. Thereafter, Investigator Anderson extended the deadline to complete the Directive to August 25, 2023 at 5:00 p.m. Complainant subsequently agreed to extend the deadline to complete the Directive to September 25, 2023 at 5:00 p.m.

8. On September 29, 2023, Investigator Anderson requested an update from Complainant regarding the status of the work. Complainant told Investigator Anderson that very little work had been performed.

9. On October 10, 2023, Investigator Anderson conducted a compliance inspection. Investigator Anderson confirmed that the work was still incomplete.

10. On October 25, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(22). 11. Respondent filed a timely answer to the Citation.

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

13. A hearing was held on January 9, 2023.

14. At hearing, Complainant testified on behalf of himself. Complainant explained that Respondent performed poor work in connection with the pool installation contract. Complainant explained that he provided milestone payments in advance of work being completed. Complainant asserted that he gave Respondent every opportunity to perform the scope of the project. Investigator Anderson testified consistently with his job-site inspection notes and the Directive.

15. No one appeared on behalf of Respondent at the hearing on January 9, 2023. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the Office of Administrative Hearings to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

16. Pursuant to A.A.C. R9-4-117, administrative notice is taken of Respondent’s

license history on the Registrar’s public website on this date. Respondent’s License No. ROC 317823 is active. Respondent’s license record shows that Respondent has been disciplined in one case, and there are three other open complaints against Respondent’s license. Respondent’s license record further shows that two complaints were settled or resolved by the contractor, or withdrawn by the complainant, after a corrective action was issued.

17. Respondent’s disciplinary history is considered an aggravating factor in the imposition of discipline and penalties.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 317823, held by Unity Pools LLC, for two weeks.

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. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, January 29, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mark G. Saric

[email redacted]

David Thomas

[email redacted]

Unity Pools, LLC

[email redacted]

By: OAH Staff