ALJDEC - Licensing

2023A-05954-CHC-ROC · Registrar of Contractors · 2023-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Blake Carbonatto,

COMPLAINANT

v.

Unity Pools LLC

License No. ROC 317823,

RESPONDENT

No. 2023A-05954-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 14, 2023

APPEARANCES: Complainant Blake Carbonatto appeared on his own behalf. Travis Scott appeared via Google Meet on behalf of Unity Pools LLC. Registrar of Contractors Investigator Doug Barrett appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Unity Pools LLC (Respondent) is the holder of License No. 317823 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 3, 2022, Blake Carbonatto (Complainant) signed a contract with Respondent for a backyard remodel including installing a pool/spa, landscaping and a sports court. The total contacted amount was $260,850.00 and Complainant paid $223,453.00.

On or about May 24, 2023, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Doug Barrett. The jobsite inspection was performed on June 28, 2023.

Investigator Barrett then issued a written directive on or about July 3, 2023 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 07-28-2023.

. . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 – Water feature wall not completed. Water feature tile not completed.

Investigator’s Observation: Verified. I observed an incomplete water feature to include the walls, tile, steps, slide and plumbing. I did not see any plans or permits on site. Contractor should complete the water feature, tile, slide and plumbing per the contract, plans, and permit by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 2 – Decking not started or completed.

Investigator’s Observation: Verified. I observed where the decking is supposed to be installed and there is no decking installed or material on site. Contractor should complete the decking per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 3 – Pool equipment not installed.

Investigator’s Observation: Verified. I observed plumbing roughed in but no equipment: pump, filter, electrical, control panel, valves, heater, blower or lights. Contractor should install the equipment per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 4 – Water line tile not started or completed.

Investigator’s Observation: Verified. I observed the waterline tile had been started but not completed. Contractor should complete the waterline tile per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 5 – Gas line not installed.

Investigator’s Observation: Verified. The gas line and heater have not been installed. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 8 – Water feature wall and waterslide to engineering plan for our custom waterslide.

Investigator’s Observation: Verified. I observed the water feature wall and waterslide not completed. Contractor should complete the water feature and waterslide per the approved plans and permits.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 9 – I have been told work will start again or happen many many times and nobody shows up and work is not progressing.

Investigator’s Observation: Verified. I observed the overall pool and landscape project that started in October 2022. The pool is in the shotcrete phase and not complete including pebble, plumbing and electrical. The BBQ island is roughed in with block, the landscaping is not complete and the spots court has not been

started. Contractor should complete the project per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 6 – Spa in floor system not designed and installed per the size of the spa.

Investigator’s Observation: Unverified. I have not been able to review any

plans in regards to the layout of the in floor cleaning system. In response to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Governing Rule: N/A

Compliance Item: 7 – Rebar per engineering design for our custom pool.

Investigator’s Observation: Unverified. I observed the pool in the shotcrete phase and was unable to inspect the rebar. In response to this complaint item:

There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Governing Rule: N/A.

On July 31, 2023, Investigator Barrett conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Barrett noted the following:

Compliance Jobsite General Notes: Both the Complainant and the Respondent were present for the compliance inspection. Very minimal work had been completed since the written directive was issued on July 3, 2023.

Compliance Findings:

Compliance Item: 1 – Water feature wall not completed. Water feature tile not completed.

Investigator’s Observation: Verified. I observed an incomplete water feature to include the walls, tile, steps, slide and plumbing. I did not see any plans or permits on site. Contractor should complete the water feature, tile, slide and plumbing per the contract, plans, and permit by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The water feature has not been completed.

Compliance Item: 2 – Decking not started or completed.

Investigator’s Observation: Verified. I observed where the decking is supposed to be installed and there is no decking installed or material on site. Contractor should complete the decking per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The decking has not been started or completed and no material on site.

Compliance Item: 3 – Pool equipment not installed.

Investigator’s Observation: Verified. I observed plumbing roughed in but no equipment: pump, filter, electrical, control panel, valves, heater, blower or lights. Contractor should install the equipment per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The pool equipment has not been started or completed and is not on site.

Compliance Item: 4 – Water line tile not started or completed.

Investigator’s Observation: Verified. I observed the waterline tile had been started but not completed. Contractor should complete the waterline tile per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The waterline tile has been installed, but is not finished around the skimmers.

Compliance Item: 5 – Gas line not installed.

Investigator’s Observation: Verified. The gas line and heater have not been installed. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The gas line has not been started or completed.

Compliance Item: 8 – Water feature wall and waterslide to engineering plan for our custom waterslide.

Investigator’s Observation: Verified. I observed the water feature wall and

waterslide not completed. Contractor should complete the water feature and

waterslide per the approved plans and permits.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The water feature wall and waterslide are not completed.

Compliance Item: 9 – I have been told work will start again or happen many

many times and nobody shows up and work is not progressing.

Investigator’s Observation: Verified. I observed the overall pool and

landscape project that started in October 2022. The pool is in the shotcrete phase and not complete including pebble, plumbing and electrical. The BBQ island is roughed in with block, the landscaping is not complete and the spots court has not been started. Contractor should complete the project per the contract by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

07-31-2023: The pebble, plumbing and electrical is not complete. The BBQ island had minimal work completed, stucco texture added to the blocks, and is not complete. The landscaping is not complete. The concrete for the sports court was poured.

On August 3, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

On or about August 15, 2023, Respondent e-mailed an Answer to the Registrar.

On or about August 31, 2023, a Notice of Hearing was issued setting a hearing on October 11, 2023, at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on November 14, 2023.

At hearing, Investigator Barrett testified as to his involvement and the above timeline.

Investigator Barrett testified that there was very minimal work completed during the corrective work period but not enough to extend the Directive. Further, Investigator Barrett testified that as to item 4, the waterline tile was installed but not properly finished around the skimmers, and the concrete was poured for the sports court.

Complainant testified on his own behalf and offered 128 exhibits into evidence.

Complainant testified generally, that he paid for work and Respondent failed to perform. For example, Complainant testified that he paid over $66,000.00 to Respondent for the deck/tile/paver installation and none of that work was performed.

In addition, Complainant testified that based upon the work completed, he estimated that he overpaid Respondent $65,720.00 and multiple times requested that Respondent refund his money and they would simply end the contract. Complainant testified further that it was not until September 25, 2203 that Respondent seemed interested in a financial settlement, however, Respondent never followed through.

As to the work performed, Complainant testified that from February 8, 2023, when he made his last payment, until July 2023, only minimal work was performed.

Complainant also testified that while Respondent informed him of material and labor shortages, Complainant wound up hiring North Star pools to finish the project, and everything was completed within 5 weeks.

Travis Scott testified on behalf of Respondent. He testified that it had been short with material and labor and that he did as much as he could with what he had.

Mr. Scott testified further that he was unable to attend the initial jobsite inspection and was on a family vacation so was unable to start on the project with only two weeks to go during the corrective work period.

As to the payment for the tile and decking in February, Mr. Scott testified that he ordered the material but it was going to take 4-6 weeks to be put into production, which was why the decking was unable to be completed.

Administrative notice was taken of Respondent’s prior License record on November 29, 2023. Such prior License record reflected that Respondent’s License No. 317823 was first issued on February 8, 2018, and reflected that there were four open complaints, one of which was the present complaint, two resolved/settled cases, and one disciplined case.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The water feature wall and waterslide were not completed; the decking was not started; the pool equipment was not installed and not onsite; the waterline tile was not finished around the skimmers; the gas line was not installed; the pebble, plumbing, electrical, landscaping was not completed; and the BBQ island was not fully completed. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not fully complete the project in a workmanlike manner. Therefore, Complainant established that Respondent failed to take appropriate corrective action in 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, the Registrar shall suspend Respondent’s License No. 317823 for a period of sixty (60) 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 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)(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, November 29, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Unity Pools LLC

4309 S Marble St

Gilbert, AZ 85297

Blake Carbonatto

4108 E Lafayette Ave

Gilbert, AZ 85298

[email redacted]

By: OAH Staff