ALJDEC - Licensing
2023A-14001-CHC-ROC · Registrar of Contractors · 2024-12-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tamara Christian
COMPLAINANT,
v.
Gary Michael Unjian
DBA: Code Blue Pools
License No. ROC 263923,
RESPONDENT.
No. 2023A-14001-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 26, 2024
APPEARANCES: Ryan D. Bailey, Esq. appeared on behalf of Complainant Tamara Christian (Complainant). Jeffrey Harris, Esq. appeared on behalf of Gary Michael Unjian DBA: Code Blue Pools (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 4.
_____________________________________________________________________
FINDINGS OF FACT
Respondent holds B-5 General Swimming Pool Contractor License No.
263923 issued by the Arizona Registrar of Contractors (Registrar or ROC).
2. Gary Unjian is Respondent’s qualifying party.
3. On or about January 5, 2022, Complainant and Respondent entered into a construction contract wherein, Respondent would re-plaster Complainant’s pool located at 7920 Riverside Drive, Parker, Arizona 85344 (the property).
4. On or about January 25, 2022, Respondent began work.
5. On or about January 20, 2023, Respondent stopped work.
6. Thereafter, the Registrar received a complaint from Complainant alleging poor work on the part of Respondent.
7. On February 1, 2024, Registrar Investigator Cliff Corlett conducted a job-site inspection. Investigator Corlett substantiated the allegation of poor work in the complaint.
8. On March 25, 2024, Investigator Corlett issued a Directive against Respondent’s license. The March 25, 2024 Directive provided, in relevant part, as follows:
.....................................
Dear Respondent:
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 or before April 26, 2024.
...................
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Allegation: 1 - Gunite was placed over 2 of the pool pop-ups
causing the Gunite and pools Pebble Tec to crack/crumble/peel up.
Investigator’s Observation: Respondent (Code Blue Pools) was the
prime General Pool contractor on this project. The General Contractor is
responsible to oversee all sub-contractors work on a project. The pool General
Contractor should have taken steps to insure the existing pop-ups were marked
and or brought to the attention of the Respondent. Complainant should have
noticed the pop-ups were "missing" prior to the re-plaster work. The buried
pop-ups caused water damage / plaster failure.
The Respondent should properly correct the covered pop-ups,
repair any Gunite damage and replace the pool plaster. Damaged
pool accent tiles should also be properly replaced.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and
workmanlike manner.
.....................................
9. On April 29, 2024, Investigator Corlett conducted a compliance job-site inspection and discovered that Respondent did not make any of the required corrections.
10. On May 10, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent may have violated A.A.C. Rule 4-9-108(A) and Ariz. Rev. Stat. section 32-1154(A)(3) and (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. At hearing, Investigator Corlett testified consistently with his job-site and compliance inspection notes. James Christian, the owner of the property, testified on behalf of Complainant. Robert Casper, Respondent’s pool technician, construction supervisor, and owner of Respondent, testified on behalf of Respondent.
14. Investigator Corlett explained that the cause of the damage was the
application of the gunite over the pops.
15. It was undisputed that a construction company named, Pina Concrete, applied the gunite over the pop-ups.
16. At hearing, Mr. Christian explained that he hired Respondent to remodel his backyard and pool. Mr. Christian searched for a pool remodel and pool re-plaster company on the internet and found Respondent. Mr. Christian paid Robert Casper.
Mr. Christian never made payments to Pina Concrete. When Mr. Christian told Respondent about the problems with the pool, Mr. Christian was told to call Pina Concrete. It was the first time that Mr. Christian had heard of Pina Concrete.
Mr. Christian demanded that Pina Concrete correct the problem, but he never received a response. Mr. Christian explained that Respondent used many subcontractors to complete the job. Mr. Christian paid Respondent an amount that exceeded the original contract price.
17. Mr. Casper is explained that the contract was for an infinity pool.
Mr. Casper found a problem that he believed was outside of the scope of Respondent’s contract with Complainant. Mr. Casper planned to execute a change order, however, Mr. Casper alleged that Complainant did not want to enter into a change order because of the price. Mr. Casper could not recall the amount of the proposed change order.
18. Mr. Casper alleged during the hearing that Complainant stated that he would “sub out” the work. At another time during the hearing, Mr. Casper stated that he was not exactly clear with Complainant and Mr. Christian that Respondent did not perform any work on the gunite. Mr. Casper admitted that he found Pina Concrete and paid Pina Concrete for the work performed by Pina. Mr. Casper was asked by his counsel whether he “fronted” the money to Pina and Mr. Casper answered in the affirmative. Mr. Casper admitted that he did not inform Complainant of the company that would perform the gunite work. Mr. Casper explained that Respondent has contracted with Pina Concrete as a subcontractor on other projects. Although Investigator Corlett’s Directive provided that Respondent should mark the pop-ups, Mr. Casper did not deny that Respondent failed to mark the pop-ups before the plaster was applied. However, Mr. Casper agreed with his counsel that the pop-ups are noticeable without marking.
19. The undisputed evidence shows that Complainant did not have a verbal nor written contract with Pina Concrete; Mr. Christian was not even aware of Pina Concrete until after the work was completed. The Administrative Law Judge finds that Pina Concrete was a subcontractor of Respondent for the pool project.
20. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on December 16, 2024. Respondent’s license record shows that its licensed was issued on April 19, 2010, and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and a civil penalty.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. section 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 section 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 section 5 (1960).
5. The preponderance of the evidence shows that Respondent failed to perform the work, described in complaint allegation 1, in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A). It is undisputed that Pina Concrete applied the gunite.
A general contractor is liable for the actions of its subcontractors. Because Pina Concrete was a subcontractor of Respondent, Respondent is liable for its substandard work. However, even if Pina Concrete was not a subcontractor of Respondent, the preponderance of the evidence shows that Respondent failed to perform in compliance with professional industry standards when it failed to mark the pop-ups before the plaster was applied.
6. 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. 263923 held by Gary Michael Unjian
DBA: Code Blue Pools, for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, December 16, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Ryan Bailey, Esq.
[email redacted]
Tamara Christian
[email redacted]
Jeffrey D. Harris, Esq.
AXIOM ADVICE & COUNSEL LLC
[email redacted]
Gary Michael Unjian
DBA: Code Blue Pools
[email redacted]
By: OAH Staff