ALJDEC - Licensing

2024A-09432-CHC-ROC · Registrar of Contractors · 2025-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kit Nelson,

COMPLAINANT,

v.

SUNSET CONSTRUCTION, LLC.

License No. ROC 340299,

RESPONDENT.

No. 2024A-09432-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 12, 2025

APPEARANCES: Christopher “Kit” and Lindsay Nelson appeared on their own behalf. No person appeared to represent Sunset Construction LLC. Robert Di Alto, Investigator, appeared on behalf of the Arizona Registrar of Contactors.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Packet); Complainant’s Pre-hearing disclosure [Exhibits 1 through 17].

_____________________________________________________________________

FINDINGS OF FACT

Sunset Construction, LLC (Respondent) is the holder of License No. 340299 [KB-1 Dual Building Contractor] issued by the Arizona Registrar of Contractors (Registrar or ROC) in August 2022. Justin Gastineau was Respondent’s Qualifying Party; he disassociated on August 23, 2024.

In August 2023, Complainant contracted with Respondent for Respondent to build a pool, Jacuzzi, 24” scupper wall and a fire pit.

On August 9, 2024, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that there were thirteen items of concern with regard to the project. Complainant later expanded on the Complainant with an addendum of 28 items.

The Registrar assigned the Complaint to Investigator (Inv.) Robert Di Alto.

While the parties worked together for a period, the project did not make headway, and Inv. Di Alto subsequently scheduled, and rescheduled, a job site inspection.

Inv. Di Alto conducted the jobsite inspection on December 2, 2024; Respondent was not present through any representative. Inv. Di Alto documented his observations through job site notes, photographs, and an audio recording.

Investigator Di Alto issued a Written Directive to Respondent, dated December 4, 2024, that provided, in pertinent part, 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 12/20/24.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 2 - billing schedule does not comply with AZ law

Investigator’s Observation: Verified. The contract does not comply with

Governing Rule: A.R.S. § 32-1158.01. Swimming pool; spa; construction contracts. Warning letter issued 10/18/2024.

Complaint Item: 1a- Gutters: Not started

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 2a- Saltillo tiles replaced, polished, and sealed: Not started

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 3a- Exterior touch-up paint: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 4a- Outdoor shower pony wall: Not started

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 5a- Patio cover under hang rejoining: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 6a- Pool equipment: Needs to be relocated per plans

Investigator’s Observation: Verified. The plans and specifications indicate the equipment location at the east property line wall. The rough in plumbing is currently located at the south property line wall. 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: 7a- Pentair pool equipment: Not installed, unsure if gas lines ran

Investigator’s Observation: Verified, No pool equipment is installed or on site at the time of this inspection. Respondent shall complete project per original contract 12/23 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: 8a- Skimmer filter and autofill: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 10a- Scupper wall: Abandoned

Investigator’s Observation: Verified. Verified. The complaint item (water feature) is incomplete at the time of this inspection. Respondent shall 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: 11a- Pony wall around pool equipment: Not started

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 12a- Spa tile work: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 13a- Pool and spa light installation: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 14a- Fire pit: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 15a- Travertine decking and step area: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 16a- Outdoor shower basin and drain pipe: Abandoned

Investigator’s Observation: Verified. The complaint item is incomplete at the time of this inspection. Respondent shall 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: 17a- Planter areas and irrigation: Not started

Investigator’s Observation: Verified. The complaint item is incomplete. Respondent shall 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: 18a- Debris cleanup: Abandoned

Investigator’s Observation: Verified. I observed multiple areas where construction debris in the back of the residence and around the back yard, and at east side of the residence. 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: 21a- Electrical line dug up and cut

Investigator’s Observation: Verified. I observed a damaged electrical conduit with multiple damaged conductors at the time of this jobsite visit. 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: 22a- Stucco damaged

Investigator’s Observation: Verified. The Complainant advised that she also meant that there were areas that were incomplete. I observed several small areas at the weep screed and under the double patio door at the rear of the residence. 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: 23a- Poorly cut blue/green tiles near the spa waterfall

Investigator’s Observation: Verified. I observed readily visible jagged edges at the top of the waterline tile located at the spa spillway. 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: 24a- Travertine leveling, replacing bad cuts and pieces with concrete on them Investigator’s Observation: Verified. I observed several areas where it appears that the travertine has sunk and lippage is visible. The job appears to be incomplete at the time of this inspection. The Respondent shall correct by the appropriate means, and 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: 25a- Tile holes in the kitchen from drilling to find a stud when mounting shelves Investigator’s Observation: Verified. I observed two readily visible holes just below the wall shelf brackets at the described 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: 27a- Silicone needed for wood/tile transition in master bedroom/bathroom Investigator’s Observation: Verified. The bedroom flooring appears to be a floating floor type installation. I observed vertical movement where the bedroom flooring meets the bathroom floor tile transition. A transition molding is typically applied at this type of transition. 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: 28a-Electrical outlets (2) in outdoor kitchen not working

Investigator’s Observation: Verified. The GFCI outlet above the outside countertop and behind the refrigerator were non-functional at the time of this inspection. 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) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

[There followed items for which Inv. Di Alto either found no violation or required no corrective work by Respondent.]

When the work was not completed by the Written Directive deadline of December 20, 2024, Inv. Di Alto forwarded the matter to the Registrar’s Legal Department.

On December 30, 2024, the Registrar issued a Citation against Respondent charging possible violations:

Charge :1 A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Charge :2 A.R.S. § 32-1154(A)(3)-R4-9-108(A) 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.

Charge :3 A.R.S. § 32-1154(A)(8) Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

Charge :4 A.R.S. § 32-1154(A)(16) Knowingly contracting beyond the scope of the license or licenses of the licensee.

Charge :5 A.R.S. § 32-1154(A)(18) Failure to notify the Registrar in writing within a period of fifteen days of any disassociation of the person who qualified for the license. Such licensee shall have sixty days from the date of such disassociation to qualify through another person.

Charge :6 A.R.S. § 32-1154(A)(22) Failure 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.

By e-mail dated January 14, 2025, the Respondent’s former qualifying party filed an Answer to the Citation, arguing that there was no abandonment, that it was a monetary dispute regarding more money being needed for the change orders, that there were permit delays, and that Respondent could not finish the pool work while working on the residence.

On February 7, 2025, the Registrar issued its Notice of Hearing setting the hearing for March 12, 2025 at 1:00 p.m. to be virtual and notifying the parties they would receive the virtual link information. The Notice of Hearing was sent to the parties’ addresses of record with the Registrar.

On February 21, 2025, the Office of Administrative Hearings issued an Order with the virtual link information. The Order was sent to the addresses utilized on the Registrar’s Notice of Hearing.

At the time of the hearing, and for fifteen (15) minutes thereafter, Respondent did not appear through any representative. The hearing proceeded in Respondent’s absence.

Inv. Di Alto credibly testified in support of his observations and determinations of violations as were demonstrated by the photographs and as were set forth in the issued Directive. Inv. Di Alto testified that, once a directive deadline has passed, a homeowner is free to bring another contractor to perform the directive work that was left incomplete by a respondent. Of the many circumstances noted: Respondent had filled the pool with water before the plumbing, pool equipment, gas line and electrical were in place; the travertine had been laid over the area through which the gas line had to be placed; Respondent had not installed the barrier around the pool; Respondent had begun to dig without properly blue staking the area; and inspections had not been called for in timely manner.

Complainants echoed the Respondent’s poor workmanship and Inv. Di Alto’s observations, along with presenting testimony of a licensed contractor brought on to complete the verified items. That licensed contractor further testified regarding the poor, “in disarray,” state of the project as he found it and regarding the process for completion, per proper plans, of the uncorrected Directive items.

Complainants indicated that the last time Respondent was on the site was October 3rd or October 4th of 2023. Complainants further indicated that subcontractors had been coming to them regarding the matter, payments and liens.

Administrative notice is taken of the Registrar’s public record posted as of April 2, 2024. Respondent’s License No. 340299 is currently suspended for lack of a qualifying party. The Registrar’s record also reflects that there are two open complaints, including the instant Complaint, and one complaint resulting in discipline against Respondent’s license.

The Registrar’s Mission Statement as set forth on the public website is: “Protect the health, safety and welfare of the public through a regulatory system designed to promote quality construction by Arizona Contractors.”

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.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

Respondent failed to appear and present any evidence to contest the hearing record.

The uncontroverted evidence of record established that Respondent’s work on Complainant’s project was not in conformity with the Registrar’s standards.

The hearing record established the following violations by Respondent:

a. A.R.S. § 32-1154(A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

b. A.R.S. § 32-1154(A)(3)-R4-9-108(A) 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.

A.R.S. § 32-1154(A)(8) Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

A.R.S. § 32-1154(A)(16) Knowingly contracting beyond the scope of the license or licenses of the licensee.

A.R.S. § 32-1154(A)(18) Failure to notify the Registrar in writing within a period of fifteen days of any disassociation of the person who qualified for the license. Such licensee shall have sixty days from the date of such disassociation to qualify through another person.

A.R.S. § 32-1154(A)(22) Failure 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.

The Administrative Law Judge concludes, based upon the hearing administrative record, the evidence presented at hearing, and the Registrar’s Mission Statement, that in order to protect the citizens of the State of Arizona from a similar fate as suffered by Complainant in this matter that Respondent’s license should be revoked.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final Order, the Registrar shall revoke Respondent’s ROC License No. 304299.

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, April 3, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Robert Di alto

[email redacted]

Kit Nelson

4149 E Cochise Rd

Phoenix, AZ 85028

[email redacted]

SUNSET CONSTRUCTION, LLC

4400 N Scottsdale Rd 9-350

Scottsdale, AZ 85251

[email redacted]

SUNSET CONSTRUCTION, LLC

6821 E 5th St

Scottsdale, AZ 85251

[email redacted]

By: OAH Staff