ALJDEC - Licensing
2024A-06230-CHC-ROC · Registrar of Contractors · 2025-04-09
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Shane Martin Kaysen
Adela Kaysen
Edge General Contracting LLC,
COMPLAINANT,
v.
Amy Louise Ulmer,
dba Southwest Developing
ROC License No. 329959,
RESPONDENT.
No. 2024A-06230-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 03, 2025 at 9:00 AM.
APPEARANCES: Adela Kaysen appeared on behalf of Edge General Contracting LLC (“Complainant”) with Shane Martin Kaysen as a witness. Cliff Corlett appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Amy Luis Ulmer (“Respondent”) appeared on her own behalf with Joseph Ulmer as a witness.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Amended Notice of Hearing on Contested Case (“Amended Notice of Hearing”), January 10, 2025, and February 11, 2025, Minute Entries – Granting Continuance, and Respondent Exhibits AV, AX, and BA-BE were admitted into the evidentiary record.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On July 28, 2020, the Registrar issued ROC License No. 329959 General Dual KB-2 Residential and Small Commercial contracting license to Respondent, a Sole Proprietorship. The license is renewed through July 31, 2025. Amy Louise Ulmer is listed as the Qualifying Party and Owner on the license. Respondent’s address of record for the license is 3958 W. Aragon St. Lake Havasu City, Arizona 86403. Respondent has an active $14,000.00 surety bond on the license issued by RLI Insurance Company, effective July 13, 2020. The license has no prior disciplinary record, save one (1) open complaint that was resolved or otherwise settled against it. Currently, there is one (1) open complaint against the license which is presumed to be related to this matter.
On May 30, 2024, the Registrar received a short narrative complaint from Complainant against Respondent’s License No. 329959 alleging abandonment of their retaining walls, in-ground pool, barbeque island, and fire pit project. The Registrar designated it Complaint No. 2024-06230 and assigned to Cliff Corlett (“Investigator Corlett”) for investigation.
On June 20, 2024, Investigator Corlett issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 26, 2024, at 9:30 a.m. Correspondence was not returned as undeliverable to Respondent.
On June 26, 2024, Investigator Corlett inspected the work that had been performed on the project to date. Respondent was present. Investigator Corlett also reviewed the contract-related correspondence between the parties, and took 24 photographs of the project site. When he was finished, Investigator Corlett drafted his Inspection Notes. Ultimately, Investigator Corlett derived eleven (11) distinct complaint items from Complaint No. 2024-06230, eight (8) of which he substantiated based on his firsthand observations. Specifically, Investigator Corlett determined that determined that complaint items 3-7 and 9-11 fell below the Registrar’s minimum workmanship standards and required correction and/or completion by Respondent.
On July 08, 2024, Investigator Corlett issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated most of Complainant’s complaint allegation(s) against ROC License No. 329959. Respondent was advised to “COMPLETE BY APPROPRIATE METHODS.” (Emphasis in original.) Respondent was further put on notice that it had until 5:00 p.m. on July 31, 2024, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.
On November 22, 2024, Investigator Corlett forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On July 11, 2024, Complainant submitted a 16-item Addendum Complaint to the Registrar.
On July 15, 2024, Investigator Corlett issued an Addendum Jobsite Inspection Notification letter to the parties, advising that he would conduct an onsite review at the project site on July 19, 2024, at 9:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On July 19, 2024, Investigator Corlett inspected the workmanship regarding Complainant’s addendum complaint items. Respondent was present. When he was finished, Investigator Corlett drafted Addendum Jobsite Inspection Notes. Ultimately, Investigator Corlett substantiated fourteen (14) addendum complaint items based on his firsthand observations. Specifically, he determined that addendum complaint items 12-16, 18-25, and 27-29 fell below the Registrar’s minimum workmanship standards and required correction and/or completion by Respondent.
On August 02, 2024, Investigator Corlett issued an Addendum Written Directive from the Registrar (“Addendum Directive”) to Respondent because he substantiated most of Complainant’s addendum complaint allegation(s) against ROC License No. 329959. Respondent was advised to “COMPLETE BY APPROPRIATE METHODS.” (Emphasis in original.) Respondent was further put on notice that it had until 5:00 p.m. on August 25, 2024, to notify the Registrar of its compliance with the Addendum Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.
On September 19, 2024, Investigator Corlett issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on October 03, 2024, at 9:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On October 03, 2024, Investigator Corlett inspected the corrective work that had been performed on the project. Respondent was present. When he was finished, Investigator Corlett drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Anderson determined that Respondent had satisfactorily remediated twenty-seven (27) of twenty-nine (29) complaint and addendum complaint items, but that complaint item 4 and addendum complaint item 22 remained outstanding.
On October 23, 2024, Investigator Corlett escalated the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On November 06, 2024, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(b), 32-1154(A)(16), and 32-1154(A)(22). Respondent was given until November 21, 2024, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.
On November 20, 2024, the Registrar received Respondent’s timely Answer whereby counsel on behalf of Respondent denied it had violated the charged listed in the Citation and requested an administrative hearing.
On November 22, 2024, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on January 17, 2025. Per the December 02, 2024, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(b)
Charge 2: A.R.S. § 32-1154(A)(16)
Charge 3: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Shane and Adela Kaysen testified on behalf of Complainants and called Investigator Corlett as a witness. Respondent testified on her own behalf and called Joseph Ulmer as a witness. The substantive evidence of record is as follows:
Complainants is holder of ROC License No. 324822 for General Dual KB-2 Residential and Small Commercial contracting. Shane Martin Kaysen is listed as the Qualifying Party and Member on the License. Adela Luminita Kaysen is also listed as a Member on the license.
On an unknown date Complainants entered into a construction agreement with Vanessa Vandenheuvel (“Homeowner”), owner of residential property located at 2699 Bamboo Dr. Lake Havasu City, Arizona 86403.
On or about May 10, 2021, the parties entered into a $62,000.00 subcontract agreement for the construction of retaining walls, in-ground pool, barbeque island, and fire pit at Homeowner’s residence.
On or about February 01, 2022, an $11,800.00 Change Order was executed to increase the size of the pool, bury a propane tank, add pool stools, and install travertine tile.
It is unclear whether any balance remains outstanding for the project.
On or about July 11, 2022, work commenced on the project. Work stopped on or about April 24, 2024.
ROC License No. 329959 was active and in good standing with the Registrar during the Directive’s and Addendum Directive’s compliance periods.
Additional Evidence
Investigator Corlett testified that prior to the expiration of the Addendum Directive’s compliance period he extended the deadline at Respondent’s request because “things were getting done.” He did not identify or otherwise specify an updated compliance deadline date for the Addendum Directive or issue a formal letter on behalf of the Registrar’s acknowledging the extension thereof.
Investigator Corlett testified that pool construction exceeded the scope of Respondent’s construction license, but included the ability for Respondent to subcontract pool-related construction to an appropriately licensed pool subcontractor. As such, Respondent could not perform corrective work on complaint item 4 or addendum complaint item 22. The only way for Respondent to satisfy the Addendum Directive for those two items was to subcontract the work out to an appropriately licensed pool subcontractor, or enter into a financial settlement agreement with Complainants.
Investigator Corlett testified that he performed a prehearing jobsite inspection of the project ton January 07, 2025, whereby he determined that complaint item 4 or addendum complaint item 22 remained outstanding, though the rings on the table had faded slightly.
Mr. Kaysen testified that although Investigator Corlett’s remediation instructions regarding complaint item 4 or addendum complaint item 22 were unclear to him, he did not seek further clarification from the Registrar, subcontract-out the corrective work, or enter into a settlement agreement with Complainants for those items.
Mr. Ulmer testified that he is Respondent’s husband, and that he is also employed by her as a Superintendent. Mr. Ulmer performs construction on behalf of Respondent and does not have his own contracting license.
Mr. Ulmer testified that pool tabletop was installed 4 to 5 days prior to the compliance jobsite inspection, and that it would take 1 to 2 months for it to dry and for the visible rings to disappear.
Mr. Ulmer and Respondent testified that, per their understanding from the jobsite inspection, there were only 3 identified locations in the pool where tiles were required to be corrected. Mr. Ulmer and Respondent were unaware additional locations around the pool also needed to be addressed. Mr. Ulmer and Respondent denied that there was grout at the water line, and argued that the visible substance was alkalinity. Neither Mr. Ulmer nor Respondent ordered testing.
Respondent testified that Homeowner made a number of changes directly with her instead of going through Complainants, which created confusion and delay.
Respondent testified that she was no longer permitted to access the project site after September 28, 2024.
Respondent testified that on March 05, 2025, she obtained ROC License No. 357498 for General Dual KA-5 Swimming Pool contracting.
Closing Arguments
In closing, Respondent argued that the issue with the rings on the table was resolving itself over time, and after a while would no longer be visible. Respondent argued that instructions given regarding the tiles were unclear and she addressed them as best she could given the information she had.
In closing, Complainant opined that it had sustained its burden of proof, and argued that Respondent should be required to cover the cost of repairs to items 4 and 22.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“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.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(b) requires, in pertinent part, that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.
Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the ROC may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are clear.
It is clear from the record that the parties had an extensive subcontract agreement that included scopes of work which exceeded the scope of Respondent’s license. It is also clear that a lot of the work Respondent performed on the project fell below the Registrar’s minimum workmanship standards. It is further clear that while Respondent satisfactorily addressed all items under the purview of its license; 27 of 29, it failed to address complaint item 4 and addendum complaint item 22 as required by the Addendum Directive.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Addendum Directive and remediate items 4 and 22. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain her burden. Respondent admitted to making her own attempts to correct items 4 and 22 prior to the issuance of
ROC License No. 357498, and further admitted to never attempting to subcontract the work to an appropriately licensed subcontractor. No mitigating evidence exists in the record in favor of Respondent. There is no evidence in the record that excuses or otherwise justifies Respondent’s conduct regarding these items.
Notably, Respondents denial of access argument is meritless. Although Respondent alleges that she was not permitted access to the project site as of September 28, 2024, and while Investigator Corlett admitted that he did not provide an extension deadline for compliance with the Addendum Directive, the record reflects that she had from August 02, 2024, to October 02, 2024, to remediate items 4 and 22, but could have only utilized an appropriately licensed subcontractor to fix those items or enter into a financial settlement agreement with Complainants. Respondent could not have legally performed the work herself during that 4 day period because she was not properly licensed by the Registrar to do so. Respondent’s obtainment of ROC License No. 357498 constitutes a post-remedial measure that cannot be retroactively applied.
Because Complainants have established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3), (A)(16), and (A)(22) by a preponderance of the evidence, Complainants have also established cause for the Registrar to discipline ROC License No. 329959.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, ROC License No. 329959, as issued to Respondent Amy Louise Ulmer, dba Southwest Developing, be suspended for three (3) days.
IT IS FURTHER RECOMMENDED that, in light of the circumstances, no civil penalty be assessed against ROC License No. 329959.
NOTICE
Pursuant to Ariz. Rev. Stat. § 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, April 09, 2025.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Amy Louise Ulmer, Respondent
2182 McCulloch Blvd. N. Ste., 1
Lake Havasu City, AZ 86403
LHC,[email redacted]
Shane Martin Kaysen
Adela Luminita Kaysen
Edge General Contracting LLC, Complainant
2619 Tradewind Dr.
Lake Havasu City, AZ 86403
[email redacted]
[email redacted]
By: OAH Staff