ALJDEC - Licensing

2024A-08792-CHC-ROC · Registrar of Contractors · 2025-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pamela Holthaus,

COMPLAINANT,

Rezcom Builders LLC

License No. ROC 318078,

RESPONDENT.

No. 2024A-08792-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 21, 2025.

APPEARANCES:

For Complainant: James Csontos.

For Respondent: Christian Lestinsky.

For the Registrar of Contractors: Robert Di Alto.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Disclosure Statement, Exhibits 1–27. Respondent’s Disclosure Statement, Exhibits 1–21.

_____________________________________________________________________

FINDINGS OF FACT

Rezcom Builders LLC (Respondent) was the holder of License No. 318078 issued by the Arizona Registrar of Contractors (Registrar) on February 21, 2018.

On or about August 9, 2023, Pamela Holthaus (Complainant) entered into a contract with Respondent for, among other things, demolition of existing pool, construction of a new pool, and the installation of a patio.

On or about August 3, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.

The Registrar assigned the complaint to Investigator Robert Di Alto, who issued a Jobsite Inspection Notice on August 8, 2024, scheduling the inspection for September 16, 2024. On September 16, 2024, Investigator Di Alto notified the parties that additional complaint items had been submitted and the hearing was rescheduled for October 2, 2024.

Investigator Di Alto conducted the jobsite inspection on October 2, 2024, and Respondent was present. Following the inspections, Investigator Di Alto issued a Written Directive From the Registrar to Respondent on October 21, 2024, that provided as follows:

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

Complaint Item: 1- Tiles do not have mortar under the majority, causing them to be uneven & grout is eroding

Investigator’s Observation: Verified. While the Complainant failed to demonstrate whether mortar is not applied to the majority of the pavers, there are several joints where gout is lower than the paver surface and the edge is visible. Joint spacing is inconsistent and there are areas that exhibit visible lippage. The overall installation appears to be poorly done. The Complainant did demonstrate a single example of a removed tile that illustrates that mortar is applied to the back of the tile (see JSI Photos P-53 & P-54), and also used a wooden broom stick handle to identify hollow sounding tiles in several areas. Respondent stated that pavers were sand set. Per the manufacturer installation methods, pavers installed over a slab on grade/concrete base; a cementitious adhesive shall be used as the method of installation (included in photo report). I also observed a code violation on the upper patio deck where the finished surface clearance to weep screed is less than 2”. This violates IRC R703.7.2.1. The Respondent shall correct by the appropriate means, and install as per the manufacturer recommendations and professional industry standards.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 2- Several chips in tiles all around pool, patio and bbq (including some that were damaged

Investigator’s Observation: Verified. I observed several readily visible chipped tiles from a standing position. I also observed tiles with broken corners at several locations that include the upper patio deck and lower pool deck. The Respondent shall correct by the appropriate means where these conditions exist.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 4- Tiles around fire pit not cut straight & weird wire sticking out underneath

Investigator’s Observation: Verified. The installation of the pavers at the described location is poorly done. Grout lines are uneven and joint spacing varies, rough tile cuts are visible. The Respondent shall correct by the appropriate means. The “weird wire “is addressed in the following complaint item #5.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 5- Strip lighting around firepit falling off - was supposed to be wired not have a plug

Investigator’s Observation: Verified. The parties stated that the lighting was removed because it kept detaching. There is a visible open junction box at the toe area of the fire pit located at the recessed seating area. The existing junction box appears to be in violation of NEC 406.9(B)(1) Receptacles in damp or wet locations. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 6-Drains for water around pool - standing water when it rains

Investigator’s Observation: Verified. The Respondent acknowledged a drainage issue located at the lower pool deck, and stated that he would install the proper drain to mitigate the complaint item. The Respondent shall correct by the appropriate means, where this condition exists.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 7- Exposed Pipe for water features & Fix concrete wall (cracks) – tile over to finish the wall

Investigator’s Observation: Verified. There are visible cracks in the stucco finish at the described location. The Respondent verified that the area was incomplete, and that it would be finished and painted. The PVC supply lines (3) for the water features are exposed and have a southern exposure placing them in an intense UV environment. It is recommended that a chemically compatible paint is applied in this type of UV exposure. The Respondent shall correct by the appropriate means.

In regards to tiling over to finish the wall, there are no provisions or specifications to perform this work in the contract documents provided. No further action required by the Respondent for this part of the complaint item.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 8-Strip lighting around countertop in outdoor kitchen not installed

Investigator’s Observation: Verified. The Respondent acknowledged that the complaint item is not completed. The Respondent shall correct/ complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 13- Per contract- Existing lighting replaced - contractor will install - did not do - need refund

Investigator’s Observation: The Complainant will need to provide the landscape lighting in order for the Respondent to install. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

The Registrar does not have jurisdiction over financial matters. No further action required by the Respondent.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 15- large area in middle of pool - Pebble tech is stained

Investigator’s Observation: Verified. I observed a large oval shaped, and discolored area at the center of the pool that appeared darker than the surrounding finish. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 16- Pool in floor cleaner system is not working properly - fitting is stuck & dirt sitting and not pushing into drain cleaning system did not appear to be functioning at the time of the inspection. The Respondent shall diagnose and correct by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 16-2 fitting is stuck & dirt sitting and not pushing into drain

Investigator’s Observation: Verified. The complaint item shall be addressed with the above complaint item#16.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 19- Pool Aerator - there is no fitting

Investigator’s Observation: Verified. The Respondent acknowledged that an aerator has not been installed, and that he will install the Aerator. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 20-Pool baja 7 feet on plans - it is not the correct size

Investigator’s Observation: Verified. The baja shelf is approximately 69”-70”. The provided pool plans indicate the baja shelf is to be 7’ (84”). The parties both acknowledge this deviation. The Respondent stated that he was not sure why there was a change, but it was discussed with the Complainant several times. Note: ARS § 32-1158.01(C), Any changes, additions or deletions to the work specified in the original contract shall be included in a written change order. The Respondent shall correct by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.

Governing Rule: Workmanship rule: ARS §32-1154 (A) (2), Departure from or disregard of: (a) plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Complaint Item: 21- Added at JSI: Tape residue at pavers in multiple areas.

Investigator’s Observation: Verified. There is visible residue on the patio paver steps, and the pool deck pavers located at the base of the raised patio wall. The Respondent acknowledged that the complaint item needs to be cleaned/removed. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(Addendum Complaint Items added 09/14/2024)

Complaint Item: 1a- Spa Bubblers not installed – 6 per plans

Investigator’s Observation: Verified. Neither trough at either side of the spa has bubblers installed. The contract documents and SMS messages between the parties discuss and identify a qty: of 6 Bubblers located at the spa trough with 3 on each side of the spa. The Respondent shall correct by the appropriate means.

Complaint Item: 2a- Size of the spa/spa trough 2’–not to plan size

Investigator’s Observation: Verified. The spa trough appears to be less than 12” and the plans provided call for a 24” wide trough at the described location. Note: ARS § 32-1158.01(C), Any changes, additions or deletions to the work specified in the original contract shall be included in a written change order. The Respondent shall correct by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.

Complaint Item: 3a- Spa step not to plan

Investigator’s Observation: Verified. The pool plan provided illustrates a wider entry step to access the spa (see JSI Photo P-43). Note: ARS § 32-1158.01(C), Any changes, additions or deletions to the work specified in the original contract shall be included in a written change order. The Respondent shall correct by the appropriate means. Since the Respondent is not appropriately licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.

Complaint Item: 9a- Porcelain Tiles – workmanship tiles not straight

Investigator’s Observation: Verified. There are several areas where there are excessive variances in grout joint width, and where the corners of tiles meet. See JSI Photo #47 for example. The Respondent shall correct by the appropriate means where this condition exists.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 15a- The air blower for the spa was not adhered to the PVC pipe and it will not hold pressure. Therefore the spa is not functioning properly.

Investigator’s Observation: Verified. The Complainant pulled the blower off of the supply line at the time of this inspection. The blower appeared to be functioning properly, and while the manufacturer states “do not to glue the blower to the supply line”, the manufacturer does recommend drilling a small hole through the neck of the blower and securing it to the supply line with a screw. The Respondent shall correct by the appropriate means.

In regards to the spa not functioning properly, the spa appeared to be functioning properly at the time of this inspection. No further action required by the Respondent on this specific item.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 16a- The pole that the air blower is attached to is very wobbly in the ground

Investigator’s Observation: Verified. The PVC supply line that the blower is attached to is unsupported. The blower’s weight makes the assembly top heavy and could cause a joint failure at the fittings below grade if not supported/secured. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 21- Added at JSI: Tape residue at pavers in multiple areas.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

The Written Directive required Respondent to notify Investigator Di Alto of Respondent’s compliance with the directive prior to 5:00 p.m. on December 20, 2024.

On October 27, 2024, Respondent contacted Complainant to schedule a walkthrough of the house and to make a plan for the repairs.

On October 28, 2024, Complainant responded as follows:

It's great to hear from you, I am very happy to get this project finished the correct way and in a timely manner. We have done several walk throughs over the past few months and the 2 most recent were very thorough and are all written in the directive. I would like to begin with the list of Directives and go line by line. The fastest way to get on the same page is for you to take the list and give me your plan to rectify each complaint & directive. I would like to have a contract for this phase of what is going to be fixed with the information below. This way we are on the same page and there will be no miscommunication. I want nothing more than to get this done the right way.

Requirement - written step by step plan to include the following information for each complaint/directive: Once you have this plan we can discuss and agree upon the best plan of action.

1. What you will do to fix complaint/directive

2. Exact Material (name, model, where it is being purchased) used to fix complaint/directive

3. What day will you start? each complaint/directive

4. What day will you be finished? each complaint/directive

Information for You & All Sub Contractors that will be entering my yard to include the following:

Company Name

Owner(s) Name

Company Address

Personal Address

Phone Number

Email Address

ROC License #

Insurance Carrier

Surety Bond Company Contact Info and Bond #

EIN Number

Driver's License Number

Additional requirements

No work is to start until all material has arrived on site

Anyone entering my backyard will need to check in with me at the front door when they arrive and when they leave

No work may be done while I am out of town

I would like each area of work to be signed off by me and if possible someone from the ROC or a Contractor of my choice

My house is to be cleaned up daily, remove your trash and take it with you

Do not leave my water hoses on

All landscaping to be put back exactly how it was when you started, if damaged it is your responsibility to fix it

Turf to be covered, if damaged you will need to replace it

Anything and everything at my house is to be kept clean and the way that it was found

Furniture to be moved and covered to not get dirty

No trucks or equipment are to be parked in my yard

All truck/equipment dirt, oil spills, tire marks, etc on the sidewalk is to be cleaned up

Warranty information for equipment given to me

Warranty information for pebble given to me immediately

I will need to get HOA approval, so once I have your plan back in writing I will submit it to the HOA. I need to know what type of equipment, dumpster, etc will be at my house, how long and any material that will be in the front of my house.

I appreciate your cooperation with this matter.

On October 29, 2024, Investigator Di Alto informed the parties that they should work together, but he also stated that refusal of access would result in dismissal of the complaint.

Complainant did not try to enforce her stated rules after Investigator Di Alto’s intervention.

The parties agreed that no corrective work had been performed on the project.

On December 24, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), specifically R4-9-108(a); A.R.S. § 32-1154(A)(8); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on January 7, 2025. Respondent’s Answer denied all claims and alleged that Complainant would not let Respondent perform work without doing unrelated work first.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On February 3, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for March 4, 2025.

On March 4, 2025, the matter was continued to April 21, 2025, and the hearing was held on that date.

Investigator Di Alto testified in support of his findings. He testified that, in his opinion, Complainant did not deny access to Respondent. He testified that Complainant’s requests on October 28, 2024, were not unreasonable; they were asking for information, not denying access. He testified that Respondent’s license did not authorize building a pool without a properly licensed subcontractor, and he did not believe that Respondent had a properly licensed subcontractor—those contractors which Respondent identified did not have the required licenses throughout the relevant period.

Complainant testified in support of Investigator Di Alto’s findings. She testified that she did her best to find times that would work for Respondent, making herself available around her work hours and taking off time from work to be available. She also testified that she was available on weekends. She testified that Respondent was uncooperative, frequently canceling or rescheduling meetings. She testified that she did not deny access, simply putting reasonable conditions on when the work could be done and making limited requests for professional conduct. She testified that she did not ask for a change of materials, merely indicating that some of the existing materials needed to be replaced in accordance with the Directive.

Complainant’s witness, Roberto Polo testified in support of Complainant.

Respondent testified that Complainant was difficult to work with, and that she regularly changed portions of the project (without corresponding change orders). He testified that he provided a work plan to Complainant about how he would correct the Directive items. He testified that Complainant wanted a different material to be used for some of the work.

Administrative notice was taken of Respondent’s prior License record on May 8, 2025. According to that record, Respondent’s License No. 318078 was active and had two open complaints pending against Respondent’s license.

Administrative notice was taken of the KA-5 Dual Swimming Pool Contractor license for Continental Pool Builders LLC, No. 352417. That license was issued on May 24, 2024, which was nine months after the contract was signed.

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. Respondent bears the burden of proof to establish an affirmative defense 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.”

For the purposes of this hearing, Respondent only had notice of the alleged violations in the Citation. Accordingly, this Tribunal can only find violations of law that appeared in the Citation. Only alleged violations identified by the Investigator and deemed uncorrected are noticed in the Citation: as stated in the Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent with violation(s).” Where the investigator did not find cause to charge Respondent, charges were not incorporated into the Citation. The Registrar’s process provides the Respondent an opportunity to correct its deficient work by appropriate means; without that opportunity, the alleged deficiency is not ripe for hearing.

During the Directive period, homeowners cannot refuse access to a contractor and seek discipline against that contractor. Refusing access impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, homeowners are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means.

Complainants do not have the right to dictate how a contractor satisfies the Directive Compliance Items. When a complainant refuses to allow a contractor to take the appropriate corrective action, a complainant effectively denies the contractor a meaningful opportunity to correct their work. Denying a contractor the opportunity to correct their work constitutes a denial of access for the impacted Directive Compliance Items.

Complainant’s testimony was more credible that Mr. Soldo’s testimony.

Respondent did not materially contest any of the workmanship issues.

The preponderance of the evidence established that Respondent departed from or disregarded plans or specifications in violation of A.R.S. § 32-1154(A)(2)(a).

The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) for all of the Directive items.

The preponderance of the evidence established that Respondent failed in a material respect to complete the project for the contracted-for price in violation of A.R.S. § 32-1154(A)(8).

The preponderance of the evidence established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

The preponderance of the evidence established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22) for all twenty-one Directive items.

Respondent failed to demonstrate that it was denied access by a preponderance of the evidence. Respondent argued that Complainant denied access by, in part, not being available at its convenience, asking for subcontractor information, having an HOA, and allegedly dictating how the work should be completed. This argument was not compelling. Respondent was responsible for correcting the deficient work, and the preponderance of the evidence established that Respondent made no meaningful effort to correct any of the Directive items.

A critical component of determining discipline is the extent to which Respondent made a good faith effort to comply with the directive. The preponderance of the evidence established that Respondent did not make a good faith effort to correct any of the work, which is exemplified by the work plan.

Pursuant to A.R.S. § 32-1154(E), “[t]he [R]egistrar may impose a civil penalty of not to exceed $500 on a contractor for each violation of subsection A, paragraph 22 of this section.” A.R.S. § 32-1154(A)(22), in turn, makes “[f]ailure to take appropriate corrective action to comply with this 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” a violation.

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. 318078 for 4 days.

It is further recommended that the Registrar require Respondent to pay the sum of $ 5,250.00 as a civil penalty: $ 250.00 for each of its 21 violations for failure to comply with the Directive, pursuant to A.R.S. § 32-1154(E). 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 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, May 12, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

James Purdy

The Purdy Firm PLLC

[email redacted]

By: OAH Staff

James N. Hanson

LANG & KLAIN PC

[email redacted]

Robert Di alto

[email redacted]