ALJDEC - Licensing
2023A-05305-CHC-ROC · Registrar of Contractors · 2024-04-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Ryan Smith ,
COMPLAINANT
v.
Unity Pools LLC
License No. ROC 317823,
RESPONDENT
No. 2023A-05305-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 5, 2024, 9:00 A.M.
APPEARANCES: Complainant Ryan Smith appeared on his own behalf; no appearance was made by or on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit No. 1
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Unity Pools, LLC (Respondent), is the holder of License Number 317823 issued by the Registrar of Contractors (Registrar).
2. On or about May 5, 2023, Ryan Smith (“Complainant”) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work in connection with a complete landscape with kitchen and pool/spa to be constructed by Respondent at a residence in Chandler, Arizona (“project”).
3. The Registrar performed an inspection of the project on June 12, 2023. Thereafter, the Registrar issued a Directive, dated June 22, 2023, requiring Respondent to remedy the following violations by appropriate means by July 10, 2023:
Compliance Item: 1 - Project schedule and timeline never given. Work is
done in increments of 2 or 3 days, with 1-2 months of no work in between. As of today it has taken 15 months to complete 1/2 the scope.; Construction material left out, street gutters with debris,; No reassurance of job getting done, requires my constant follow up to understand what will be done next and when. When I follow up when things are not done as said, points to situations on their side and complains, literally no empathy for the customer only whining about personal and professional challenges
Investigator’s Observation: Observed the construction of a new pool with a contract date of February 15th, 2022 which is yet to be completed. *Contractor to complete project by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor 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.
4. As worked progressed and after the parties created a list of items to be corrected or completed, the Registrar performed compliance inspections on August 2, 2024, October 17, 2023, and December 20, 2023. At the last compliance inspection, the Registrar noted the following findings:
Complaint Item: 1 - Turf installation.
Investigator’s Observation: Completed
Governing Rule: N/A
Complaint Item: 2 - Holes in boundary wall and home not repaired.
Investigator’s Observation: Boundary wall holes have been patched and painted; however, patched holes located on the back wall of the residence have not yet been painted.
Governing Rule: ARS 32-1154(A)(3) Poor work
Governing Rule: ARS 32-1154(A)(22) Failure to comply with Written Directive.
Complaint Item: 3 - Stained pavers in the outdoor kitchen area still require either cleaning or removal and replace.
Investigator’s Observation: It was raining at the time of the Compliance Inspection which prevented me from substantiating this complaint item.
Governing Rule: N/A
Complaint Item: 4 - Installation of pool equipment.
Investigator’s Observation: Pool equipment installation complete; however, the smart phone app and tutorial from the contractor is still required.
Governing Rule: ARS 32-1154(A)(3) Poor work
Governing Rule: ARS 32-1154(A)(22) Failure to comply with Written Directive.
Complaint Item: 5 - Lighting for yard installation.
Investigator’s Observation: According to the homeowner and documents submitted, the yard lighting was not a part of the original contract and no change orders were submitted. Cannot substantiate this complaint item.
Governing Rule: N/A
Complaint Item: 6 - Pool and spa LED installation.
Investigator’s Observation: None of the nine (9) LED lights for the pool and spa have been installed.
Governing Rule: ARS 32-1154(A)(3) Poor work
Governing Rule: ARS 32-1154(A)(22) Failure to comply with Written Directive.
Complaint Item: 7 - Stucco in BBQ area still need to be painted.
Investigator’s Observation: Completed.
Governing Rule: N/A
Complaint Item: 8 - Heaters and fans under the Pergola have not been
installed.
Investigator’s Observation: Verified. The Pergola has not been installed ye.t The fans and heaters are to be installed under the roof of the Pergola.
Governing Rule: ARS 32-1154(A)(3) Poor work
Governing Rule: ARS 32-1154(A)(22) Failure to comply with Written Directive.
Complaint Item: 9 - Finish with the installation of the electrical outlets in
kitchen area.
Investigator’s Observation: Completed.
Governing Rule: N/A
Complaint Item: 10 - Cleaning of pool and spa waterline tiles.
Investigator’s Observation: It was raining at the time of the Compliance Inspection which prevented me from substantiated this complaint item.
Governing Rule: N/A
Complaint Item: 11 - Pergola in the kitchen area has not been installed.
Investigator’s Observation: Verified. No Pergola has been installed.
Governing Rule: ARS 32-1154(A)(3) Poor work
Governing Rule: ARS 32-1154(A)(22) Failure to comply with
Written Directive.
Complaint Item: 12 - Side gate does not open fully.
Investigator’s Observation: Verified. The newly-installed pavers in front of the RV gate are uneven and wavy; preventing the gate from fully opening.
Governing Rule: ARS 32-1154(A)(3) Poor work
Complaint Item: 13 - Loose pavers by RV gate
Investigator’s Observation: Verified. Observed several loose pavers
located in proximity to the gas meter in the front yard.
Governing Rule: ARS 32-1154(A)(3) Poor work
Complaint Item: 14 - Cut/broken pavers in backyard.
Investigator’s Observation: Verified. Observed several pavers located up against the house just inside of the RV gate which were cut too short and do not extend all the way to the stem wall.
Governing Rule: ARS 32-1154(A)(3) Poor work
Complaint Item: 15 - Mess left alongside driveway.
Investigator’s Observation: Verified. Observe construction debris left alongside the east side of the driveway.
Governing Rule: ARS 32-1154(A)(3) Poor work
Complaint Item: 16 - Shotcrete splatter still needs to be cleaned off of
house.
Investigator’s Observation: Verified. Observed dried shotcrete overspray on the north-east corner of the residence.
Governing Rule: ARS 32-1154(A)(3) Poor work
Complaint Item: 17 - Visible seams in the turf. Turf does not match in
certain areas.
Investigator’s Observation: Could not substantiate any overt
differences in the turf material; however, I did observe numerous visible seams in the turf throughout the backyard. Seams should be tightly fitted with no gaps or overlaps in the seams.
Governing Rule: ARS 32-1154(A)(3) Poor work
5. The Registrar then issued a Citation to Respondent dated, December 27, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2)(b) (departure from or disregard of a building code of this state);
c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar issued a Notice of Hearing, dated and mailed January 23, 2024, notifying the parties at their addresses of record that a hearing had been set for March 5, 2024, at 9:00 A.M.
7. At the hearing on March 5, 2024, Complainant Ryan Smith testified on his own behalf; no appearance was made by or on behalf of Respondent. Todd Anderson, the Registrar Investigator (“Investigator”) testified on behalf of the Registrar. Neither party submitted exhibits prior to the hearing, but Complainant did submit exhibits (collectively Exhibit No. 1) after the hearing with the permission of the Tribunal.
8. Although the commencement of the hearing was delayed approximately 15 minutes, Respondent did not appear at any time during the hearing through an authorized officer, manager, member, employee, attorney, or any other person. Consequently, Respondent did not present any evidence in defense of potential disciplinary action against its license.
9. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that the initial Directive was in the nature of simply requiring Respondent to just finish the project. He stated thereafter that as work progressed, the parties agreed upon a list of items to be completed or corrected. He further testified that he performed several compliance inspections and that his Compliance Inspection notes of December 20, 2023, identify the deficiencies in Respondent’s work.
10. Complainant Ryan Smith testified, as herein relevant to the Citation, that there were three main areas regarding Respondent’s deficient and incomplete work. He stated the first was the yet-to-be installed pergola, a cantilevered-styled roof to the kitchen, which, according to another contractor, cannot be installed because the engineering would not accommodate it. He testified the second major item was the installation of the turf, which was installed by Respondent but of a poorer quality than the 80-ounce material he had paid for. He said Respondent had agreed to take care of it. He stated that the third item was the installation of the nine pool and spa lights, which had yet to be installed even though the pool had been filled. Specifically, he testified that Complaint Item numbers 2, 3 (cleaned but not removed), 4, 5, 7, 9, and 15 (cleaned by Complainant) had been corrected but that Complaint Item numbers 1 (completed but with incorrect material), 6, 8, 10-14, 16, and 17 were still uncorrected.
11. Administrative notice is taken of Respondent’s prior license record which reflects that Respondent’s License No. 317823 was first issued on February 8, 2018, and is currently in disciplinary suspension status. Such prior license record also reflects four Open cases, two Disciplined cases, and two Resolved/Settled cases.
CONCLUSIONS OF LAW
1. 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.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. The suspended status of Respondent’s license does not deprive Complainant of the right to prosecute a complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(D) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
5. The Notice of Hearing mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).
6. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
7. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
8. A.R.S. § 32-1154(A)(2)(b). Complainant has not presented sufficient evidence to establish that Respondent departed from or disregarded a building code in a material respect that was prejudicial to another. The Investigator did testify as to a lack of a building permit and Complainant submitted as evidence a copy of a building permit with the City of Chandler, dated April 22, 2022, for a “New pool and spa build” that indicated it would expire 180 days after issuance or the most recent inspection. Consequently, Complainant suggested there should also have been a building permit for the kitchen, but that there was not one on file with the city. However, whether there was or was not a permit for the kitchen, or whether it was even required by the city, there was no reference to a building permit in the Directive or the Compliance Inspection notes. Therefore, the evidence was insufficient to show that Respondent was directed to obtain such a permit or that this was an item to be corrected by Respondent to avoid disciplinary action.
9. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). There was no dispute as to the existence of the uncorrected Complaint items, namely, Complaint Item numbers 1 (completed but with incorrect material), 6, 8, 10-14 inclusive, 16, and 17 referenced in the December 20, 2023, Compliance Inspection notes.
10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification, and consequently should be disciplined for a violation of A.R.S. § 32-1154(A)(22). No evidence was presented of a valid justification for failing to complete the corrective work.
11. Accordingly, Complainant has met his burden of proof to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) with regard to Complaint Item numbers 1, 6, 8, 10-14 inclusive, 16, and 17, and for 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 this Order, Unity Pools, LLC’s, License Number 317823 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the 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, March 31, 2024.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Ryan Smith
[email redacted]
Unity Pools LLC
[email redacted]
[email redacted]
By: OAH Staff