ALJDEC - Licensing

2024A-07078-CHC-ROC · Registrar of Contractors · 2024-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wesley Odom,

COMPLAINANT

v.

Aqua Group LLC

License No. ROC 311651,

RESPONDENT

No. 2024A-07078-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 19, 2024

APPEARANCES: Wesley Odom, Complainant; Daniel Henderson, Managing Partner, on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Nicole Robinson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar of Contractors Notice of Hearing Packet (Packet), Complainant Exhibits 1-4

FINDINGS OF FACT

Aqua Group, LLC (Respondent) is the holder of License No. ROC 311651 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 17, 2023, Wesley Odom (Complainant) entered into a contract with Respondent for, among other things, a pool remodel project. The contract amount for the total project was $39,120.00.

The project began on December 1, 2023 and was expected to be completed in March 2024. There were some change orders to the contract which included LED light fixtures, changes to the existing Baja steps/shelf and added columns for a water feature.

The project was not completed in March 2024 and work continued through June 2024.

Towards the end of June 2024, work stopped on the project but was not completed. Daniel Henderson became ill and due to his illness he was unable to continue working, as a result, he lost his crews who sought available work elsewhere.

On or about June 23, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor workmanship and abandonment with respect to the project.

The Registrar assigned the complaint to Investigator David Fagerburg. Investigator Fagerburg scheduled a jobsite inspection on July 1, 2024 which was rescheduled at Respondent’s request due to attending a funeral. The jobsite inspection was rescheduled to July 8, 2024, and then later rescheduled to July 25, 2024. Respondent did not show for the July 25, 2024 jobsite inspection due to his illness as he was unable to work for 90 days.

After the jobsite inspection, on July 31, 2024, Investigator Fagerburg issued a written directive 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 Friday, August 23, 2024.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated...

Investigator Notes:

Upon reviewing the written proposal dated November 17, 2023 submitted by the complainant I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract. Specifically #4 and #9.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Excessive project timeline. Project not completed by March as promised at initial proposal signing.

Investigator’s Observation: At this jobsite investigation I observed a pool remodel project in progress in the backyard of the home. The complainant explained that the Baja shelf was enlarged with modifications to the pool steps and believes a permit was not obtained for the structural modifications. See P (3) thru P (6). Prior to completing the project the respondent shall obtain a permit from the local building authority, pass all inspections and complete the project per contract.

. . . .

Complaint Item 2: In April 2024, contractor provided written updated completion date of 5/17. Project still not done.

Investigator’s Observation: After this jobsite investigation the complainant provided a copy of a revised completion date of May 17, 2024 that appears to be hand written by the respondent. Prior to completing the project the respondent shall obtain a permit from the local building authority, pass all inspections and complete the project per contract.

. . . .

Complaint Item 3: Items which have been paid in full have not been completed.

Investigator’s Observation: Upon reviewing the proof of payment submitted by the complainant I am able to verify the respondent has received a total amount of $35,373.20 towards the contract amount of $39,120.00 leaving a balance for the project of $3,746.80. Prior to completing the project the respondent shall obtain a permit from the local building authority, pass all inspections and complete the project per contract.

. . . .

Complaint Item 4: Open trenches in backyard since February 2024.

Investigator’s Observation: At this jobsite investigation I observed an open gas line trench for the fire features on the side of the pool and a fire pit in the backyard that is incomplete and there is no propane tank on the jobsite. The gas line appears to be under test pressure. See P (8) thru P (16). The complainant acknowledged obtaining a permit for the gas line and the respondent has not completed the work required to call for inspection. Prior to completing the project the respondent shall obtain a permit from the local building authority, pass all inspections and complete the project per contract.

Following the issuance of the written directive, Respondent was unable to complete any additional work on the project. After the deadline in the directive expired, Investigator Fagerburg was notified that no corrective work had been performed.

On September 5, 2024, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1); Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(C); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

HEARING EVIDENCE

Investigator Fagerburg testified that Respondent did not have the proper permit to make structural changes to the pool. In particular, Respondent was contracted to enlarge the Baja steps and shelf. Respondent admitted that, in order to perform the Baja steps/shelf expansion, the company utilized steel concrete/rebar for the block work. Mr. Henderson believed that the work performed on the Baja step/shelf constituted a “cosmetic” change and was not structural.

Administrative notice is taken of Respondent’s prior License record on November 19, 2024. Such prior License record reflects that Respondent’s License No. ROC 311651 was first issued on February 28, 2017, and is Active. Such prior License record also reflects that there were three open complaints and three resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

In this case, the evidence established that Respondent submitted a bid for Complainant’s project and did not perform all of the work in the bid leaving the project incomplete. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(1) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108.

In addition, the evidence established that Respondent did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Respondent’s belief that the work performed on the Baja step/shelf was cosmetic in nature does not adhere to the facts developed at the Tribunal hearing. Investigator Fagerburg’s findings and testimony, in addition to Mr. Henderson’s admission to using steel concrete/rebar to alter the look of the Baja steps/shelf clearly established that a structural change was made by Respondent and a proper permit was not obtained. Therefore, Complainant established that Respondent departed from or disregarded the applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Unfortunately, Mr. Henderson fell ill and was unable to complete the project, however, the work that was contracted for still needed to be performed. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. ROC 311651 for a period of two days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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 6, 2024.

/s/ Nicole Robinson

Administrative Law Judge

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

Tom Cole

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

David Fagerburg

[email redacted]

Wesley Odom

9636 W Avenida Del Sol

Peoria, AZ 85383

[email redacted]

Aqua Group LLC

26618 N 59th Dr.

Phoenix, AZ 85083

[email redacted]

By: OAH Staff