ALJDEC - Licensing

2024A-13738-CHC-ROC · Registrar of Contractors · 2025-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joey Penniston

COMPLAINANT,

v.

Aqua Essence Pools LLC,

License No. ROC 208777

RESPONDENT.

No. 2024A-13738-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 21, 2025

APPEARANCES: Joey Penniston (hereinafter “Complainant”) appeared on behalf of herself. Mark Ruff appeared on behalf of Aqua Essence Pools, LLC (hereinafter “Respondent”).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits A through E. Respondent’s Exhibit 1.

_____________________________________________________________________

FINDINGS OF FACT

1. On March 24, 2024, Complainant and Respondent entered into a residential remodeling contract, wherein Respondent would renovate Complainant’s pool for the amount of $51,019.11.

2. On or about April 11, 2024, Respondent started work.

3. On or about August 1, 2024, Respondent stopped work.

4. On January 7, 2025, the Registrar received a complaint from Complainant alleging abandonment and poor workmanship on the part of Respondent.

5. The Registrar assigned the complaint to one of its investigators, Michael Wiskow (hereinafter “Investigator Wiskow”).

6. On February 10, 2025, Investigator Wiskow conducted a job-site inspection.

7. On February 12, 2025, the Registrar issued a Directive to Respondent directing respondent to repair complaint items 2 and 12 through 18 by appropriate means, no later than February 28, 2025. The Directive also notified Respondent that it was not required to correct complaint items 1, 3, 5, 6, 7, 8 through 11, and 19 through 23.

8. Investigator Wiskow verified with both parties that Respondent did not perform any work pursuant to the Directive.

9. On March 10, 2025, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(3), (12) and (22); Ariz. Rev. Stat. § 32-1158 and Ariz. Rev. Stat. § 32-1158.01; Ariz. Admin. Code

R4-9-108(A).

10. Respondent filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. A hearing was held on May 21, 2025.

13. At hearing, Investigator Wiskow testified consistently with his job-site inspection notes. Complainant testified on behalf of herself. Mark Ruff testified on behalf of Respondent.

14. Investigator Wiskow explained that Respondent’s contract did not include an estimated date of completion for all the work. Furthermore, Respondent’s contract did not advise Complainant of her right to file a written complaint with the Registrar for any violations of Ariz. Rev. Stat. 32-1154(A). Additionally, Respondent’s contract did not provide Complainant with the opportunity to request standard contractor's payment and performance bonds in a form approved by the Registrar, securing the completion of the work and payment for services and materials.

15. Complainant explained that Respondent performed poor work and delayed in completing the project. Mr. Ruff stated that Complainant was difficult to work with and made requests for work was not within the contract.

16. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on June 10, 2025, Respondent’s license was first issued on June 29, 2005, and is active. Such prior License record also shows there is only one open complaint against Respondent’s license. Such prior License record further shows that Respondent’s license has never been subject to discipline. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and a civil penalty.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s contract does not include the required elements of construction contract, which is violation of Ariz. Rev. Stat. § 32-1158 and Ariz. Rev. Stat. § 32-1158(A)(12).

5. The preponderance of the evidence shows that Respondent’s contract does not include the required elements of pool construction contract, which is violation of Ariz. Rev. Stat. § 32-1158.01 and Ariz. Rev. Stat. § 32-1158(A)(12).

6. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

7. The preponderance of the evidence shows that Respondent failed to comply with the Directive, without valid justification, which is a 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 license number 208777 held by of Aqua Essence Pools LLC for three days. 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. section 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. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended, that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with all of the requirements of Ariz. Rev. Stat. § 32-1158(A) Ariz. Rev. Stat. § 32-1158.01(A). If Respondent fails to provide proof that it has so revised its form contracts, it is ordered that Respondent’s license be suspended for three days.

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, June 10, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Joey Penniston

[email redacted]

Aqua Essence Pools LLC

[email redacted]

By: OAH Staff