ALJDEC - Licensing

2024A-13257-NPC-ROC · Registrar of Contractors · 2025-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amy Louise Ulmer,

DBA: Southwest Developing,

COMPLAINANT,

v.

Edge General Contracting, LLC

License No. ROC 324822,

RESPONDENT.

No. 2024A-13257-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2025, with further hearing on July 23, 2025

APPEARANCES: Amy Louise Ulmer appeared on behalf of Complainant Amy Louise Ulmer, doing business as Southwest Developing. Joseph Ulmer was also present. Adela Kaysen and Shane Kaysen appeared on behalf of Respondent Edge General Contracting, LLC.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: Complainant Amy Louise Ulmer, doing business as Southwest Developing’s Exhibits 1-7, 15, 16, 18, 19, 20; Respondent Edge General Contracting, LLC’s Exhibits A-J, O-V, X, Y, AA, BB, CC, DD

_______________________________________________________________________FINDINGS OF FACT

Edge General Contracting, LLC (“Respondent”) is the holder of License Number 324822 issued by the Arizona Registrar of Contractors (“Registrar”). Shane Kaysen is Respondent’s Qualifying Party and a Member. Adela Kaysen is a Member of Respondent.

On or about December 3, 2024, Amy Louise Ulmer, doing business as Southwest Developing (“Complainant”), filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant sums of money for materials and labor provided for pool construction and other work performed at the jobsite address 2699 Bamboo Drive, Lake Havasu City, Arizona.

The parties were unable to resolve their differences. The Registrar issued a Citation against Respondent for its alleged violation of A.R.S. § 32-1154(A)(10).

Amy Louise Ulmer testified that Complainant was a subcontractor and Respondent was the general contractor for the project. Ms. Ulmer alleged at the outset of the hearing and as set forth in the filed Complaint, that in addition to $8,425.00, Respondent owes Complainant the contract balance of $3,000.00, as well as $3,400.00 for the construction of a wrought iron fence, $1,425.00 for a pool table top, $575.00 for an extra spa light, $1,650.00 for the construction of a wall for the pool equipment, as well as $740.00 for fuel surcharges. This equates to a total of $19,215.00. However, at the conclusion of the hearing, Ms. Ulmer stated that Respondent owes Complainant $10,790.00 to include: $3,000.00 contract balance, $740.00 in fuel surcharges, $1,425.00 for a pool table top; $575.00 for a spa light, $1,650.00 for the wall construction; and $3,400.00 for the wrought iron fence. Ms. Ulmer did not explain the contradiction in the amounts and did not address the sum of $8,425.00 she initially claimed was due and owing in addition to the $10,790.00.

The parties did not have a signed contract. Their agreement was based upon a scope of work. This was due to the fact that notwithstanding Respondent’s requests for Complainant to revise its proposed contract to remove the “escalation clause,” Complainant did not do so. Consequently, the parties proceeded based upon the scope of work provided by Complainant to Respondent. Complainant performed additional work at the homeowners’ request and failed to execute change orders for those items.

Fuel Surcharges

Ms. Ulmer referenced several exhibits that she asserted provided notice to Respondent about the fuel surcharges that Complainant was charging to Respondent. Ms. Ulmer referenced an escalation clause in an unsigned contract that appears to have been typed in after the fact and does not reference with specificity any amount that Respondent was to be charged.

Ms. Ulmer testified that Complainant sent letters and emails to its customers regarding the fuel surcharge. However, the letters were addressed generically, “To: Our Value[d] Clients” and did not provide an amount for the surcharge and stated there would be a change order for all deliveries of concrete/shotcrete.” The letters are not dated. A September 9, 2022 fuel surcharge invoice in the amount of $240.00 was issued directly to the homeowners, not Respondent. Further, it was an invoice, not an executed change order.

Many of the exhibits submitted by Complainant were related to Respondent’s contract with the homeowners, Complainant’s invoices from its supplier, or were documents that did not contain dates or related to a different project, and there was no evidence substantiating that Complainant provided documentation to Respondent, such as the fuel surcharge notices. In fact, Ms. Ulmer acknowledged that she began charging Respondent for fuel surcharges prior to giving notice of such, as she testified that she informed Respondent on September 1, 2022, however, began charging in July 2022, in the amount of $240.00.

Adela Kaysen, owner of Respondent, testified that Respondent did not sign any contract documents and did not agree to fuel surcharges.

Plaster and Final Payment of $3,000.00

Ms. Ulmer referenced a Draw Schedule for Pool dated April 22, 2024. The Draw Schedule indicates the following:

Deposit $24,800 Rec. CK# 10971

Shotcrete $24,800 Rec. CK# 11053

Pool tile & decking $6,200.00 Rec.CK#12325

Pool Equipment $3,200.00 Rec. CK#12326

It appears that Complainant added a line 5 to the draw schedule after the fact to include a $3,000.00 line item for Plaster & Final, bringing the job total to $62,000.00.

Thereafter, it appears that Complainant again added additional costs to the same invoice, including $1,900.00 for “Labor Inflation,” $2,280.00 for “Material Inflation,” and $1,375.00 for “Equipment inflation cost.” Ms. Ulmer did not provide any evidence stablishing the costs associated with these added charges. Further, the parties did not execute any agreement associated with “inflation.” Based on the evidence presented, these additional charges are found to be arbitrary.

Additional costs per Homeowners’ Request

Ms. Ulmer testified that the homeowners requested changes/additions that Complainant supplied/performed. Ms. Ulmer testified that all of these changes were verbally requested by the homeowners and that Complainant did not obtain any signed change orders from Respondent.

The changes/additions included the following: i) a 34 x 72 stone table top for the pool in the total amount of $1,425.00; ii) an additional spa light in the amount of $575.00; iii) an additional wall for the pool equipment in the amount of $1,650.00; and iv) an additional iron fence “due to inspector called out prior to final,” in the amount of $3,400.00. Respondent advised Complainant multiple times to put any changes to the scope of work in writing. Complainant failed to do so.

The pool plans and original scope of work called for four stools to be installed in the pool. However, in lieu of the stools, Complainant installed a table top. There was no written change order concerning the pool table top. Ms. Ulmer asserted that Respondent gave permission for Complainant to deal directly with the homeowners concerning the pool table top. However, both Ms. Kaysen and Mr. Kaysen credibly testified that Respondent advised Complainant to contact the homeowners regarding the type of stone and measurements only. Further, on June 1, 2024, Respondent filed a complaint against Complainant with the Registrar alleging abandonment of the project. Registrar Investigator Cliff Corlett initially verified that the table top was not installed. During the October 3, 2024 Compliance Jobsite Inspection, Investigator Corlett found that the table top was subsequently installed, however, the “stone top exhibited unusual surface ring distortions . . .” On April 9, 2025, Administrative Law Judge Jenna Clark found in her Administrative Law Judge Decision that Investigator Corlett testified that he performed a prehearing inspection on January 7, 2025, during which he determined that “the rings on the table had faded slightly.” Ms. Ulmer submitted photographs taken by Investigator Corlett on January 7, 2025, during the prehearing inspection, depicting the condition of the table. Ms. Ulmer testified that as of March 27, 2025, the discoloration completely faded, and asserted that such proved this was not a workmanship issue. That complaint resulted in discipline against Complainant’s license, in part due to the workmanship issue concerning the pool table top. Because this matter was previously adjudicated as a workmanship deficiency, the issue cannot be re-litigated. Respondent should not pay for work performed by Complainant that has been determined not to meet the Registrar’s standards and has been adjudicated as deficient.

Regarding the $1,650.00 charge for the additional wall for the pool equipment, Ms. Kaysen credibly testified that Complainant had previously submitted a change order that indicated, “Added additional wall around pool equipment – NO CHARGE.” Ms. Kaysen testified and the change order indicated that this change and credit occurred due to the change in location of the propane tank.

Regarding the $3,400.00 charge for the iron fence, Ms. Ulmer testified that the additional fencing was required to be installed by the city inspector in order to meet code requirements for pool enclosures. However, Ms. Kaysen testified that the proposal submitted by Complainant to Respondent, that was accepted by Respondent and that encompassed Complainant’s scope of work, included the provision, “Wrought Iron per pool code – customer color.” Complainant, as a licensed contractor should be aware of the code requirements and moreover, the parties’ agreement included this provision.

Ms. Kaysen asserted at hearing that Complainant filed the instant Complaint in retaliation due to the previously filed complaint against Complainant by Respondent. Ms. Kaysen further asserted that Complainant was “weaponizing” the Registrar’s process in this matter. Ms. Kaysen testified that Complainant “waited and used” the Registrar “for back door collection.”

CONCLUSIONS OF LAW

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 this matter is 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.”

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:

Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The credible evidence of record established that Respondent did not sign Complainant’s contract document because it did not agree with the escalation clause. The evidence of record established that while Complainant may have sent out letters to its clients regarding a fuel surcharge, Respondent did not agree to such and Complainant did not execute a change order for the increased charges. Therefore, the Administrative Law Judge concludes that Complainant failed to establish by a preponderance of the evidence that Respondent owes any amount to Complainant for fuel surcharges.

Complainant failed to establish by a preponderance of the evidence that Respondent owes $3,000.00 on the contract price as Complainant failed to establish that Respondent agreed to pay for unidentified and arbitrary costs associated with “inflation.”

Complainant failed to establish by a preponderance of the evidence that Respondent owes $1,425.00 for a pool table top as the Registrar determined and it was subsequently adjudicated, that Complainant’s work on the table top was deficient and did not meet the Registrar’s workmanship standards. Complainant’s license was subsequently disciplined in part for such.

Complainant failed to establish by a preponderance of the evidence that Respondent owes Complainant $575.00 for a spa light. There was no change order provided for such.

Complainant failed to establish by a preponderance of the evidence that Respondent owes $1,650.00 for the wall construction. The credible evidence presented established that this work was performed at no cost due to the change in the location of the propane tank.

Complainant failed to establish by a preponderance of the evidence that Respondent owes $3,400.00 for the wrought iron fence as Complainant was obligated pursuant to its scope of work and as a licensed contractor, to install a fence that was code compliant.

Based on the above, Complainant has failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(10), and therefore, it is appropriate for the Registrar to dismiss this Complaint.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar dismiss the Complaint filed in this matter.

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, August 7, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Amy Louise Ulmer Amy Louise Ulmer

DBA: Southwest Developing

[email redacted]

[email redacted]

Edge General Contracting, LLC

[email redacted]

By: OAH Staff