ALJDEC - Licensing

2025A-05624-CHC-ROC · Registrar of Contractors · 2025-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joey Penniston,

COMPLAINANT,

v.

Aqua Essence Pools, LLC

License No. ROC 208777,

RESPONDENT.

No. 2025A-05624-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2025

APPEARANCES: Complainant Joey Penniston appeared on her own behalf. Marc Ruff appeared on behalf of Respondent Aqua Essence Pools, LLC. Arizona Registrar of Contractors Investigator James Carter appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None; Administrative Notice taken of Agency Record

FINDINGS OF FACT

Aqua Essence Pools, LLC (“Respondent”) is the holder of License Number 208777 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about March 24, 2024, Joey Penniston (“Complainant”) contracted with Respondent for Respondent to remodel Complainant’s existing pool. The contract price was $52,019.11. Complainant has paid Respondent $49,019.71.

On or about June 10, 2025, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator James Carter. After a July 1, 2025 Jobsite Inspection, at which both parties were present, Investigator Carter issued a Written Directive to Respondent dated July 2, 2025, 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 Wednesday, July 23, 2025.

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

Complaint Item: 1 - Contractor failed to obtain the necessary permit, knowing that the items included in the contract required a permit.

Investigator’s Observation: The Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 2 - Pool Leaks (attachment includes explanation from previous complaint)ARS 32-1154 (A)(2)((a) & (b) and ARS 32-1154 (A)(6)

Investigator’s Observation: At the time of the inspection both parties agreed that the Respondent had another company come out and do repairs to address the leaks. A leak test was done however and there is evidence of possible leaks still. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 3 - Shotcrete bond beam is 10.25-10.5 inches not 12 inches per Agreement ARS 32-1154 (A)(2)(a) & (b)

Investigator’s Observation: The coping on the deck was 12' with an overhang of approximately 1.5-2" of the extended wall installed by the

Respondent. Due to this it appears to the investigator that the bond beam is not 12" as stated in the agreement. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 4 - Cracks in shotcrete ARS 32-1154 (A)(2)

Investigator’s Observation: The cracks observe appear to be hairline in nature under 1/16'. It is unknown if these cracks are being caused due the the natural settlement of portland based products or due to the issue in item #3. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 5 - Insufficient rebar at bond beam, agreement called for

#4, 4 bar bond beam ARS 32-1154 (A)(2)

Investigator’s Observation: A review of the agreement shows that #3 rebar would be used 12" on center with four bars at the perimeter. However since no permit was obtained and there is no engineering as Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 8 - Coping grout cracked. ARS 32-1154 (A)(2)

Investigator’s Observation: The cracks observed are hairline in nature less then 1/16" As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 9 - Cracks in pebble finish at steps. ARS 32-1154 (A)(2)

Investigator’s Observation: Investigator observed cracking of the pebble tech on the steps of the pool. These steps were done as part of the project therefore as Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Complaint Item: 10 - No expansion joint at coping/paver junction ARS 32-

1154 (A)(2)

Investigator’s Observation: Investigator observed that there was no expansion joint installed. This is a matter of local municipality interpretation of the code. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: Complaint Item: 6 - Contractor charged tax but it was not required based on AZDOR designation, tax collected was not remitted to the state

Investigator’s Observation: This is a general statement and does not implicate a specific workmanship issue. It therefore and cannot be evaluated by the ROC.

Complaint Item: 7 - Contractor did not obtain a business license with the

Town of Wickenburg as required ARS 32-1154 (A)(11)

Investigator’s Observation: This is a general statement and does not implicate a specific workmanship issue. It therefore and cannot be evaluated by the ROC.

After the July 23, 2025 deadline for compliance with the Written Directive, Investigator Carter ascertained that Respondent had not complied with the Written Directive. Investigator Carter’s Compliance Jobsite General Notes set forth the following:

I spoke with the Kevin Bruce CBO for the Town of Wickenburg and he advised that as of 07/23/2025 no application for a permit was received. He advised that he has communicated with the Respondent and Respondent knows what is needed for the permit

Compliance Findings:

Complaint Item: 1 - Contractor failed to obtain the necessary permit, knowing that the items included in the contract required a permit.

Investigator’s Initial Observation: The Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 2 - Pool Leaks (attachment includes explanation from previous complaint) ARS 32-1154 (A)(2)((a) & (b) and ARS 32-1154 (A)(6)

Investigator’s Initial Observation: At the time of the inspection both parties agreed that the Respondent had another company come out and do repairs to address the leaks. A leak test was done however and there is evidence of possible leaks still. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 3 - Shotcrete bond beam is 10.25-10.5 inches not 12 inches per Agreement ARS 32-1154 (A)(2)(a) & (b)

Investigator’s Initial Observation: The coping on the deck was 12' with an overhang of approximately 1.5-2" of the extended wall installed by the Respondent. Due to this it appears to the investigator that the bond beam is not 12" as stated in the agreement. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 4 - Cracks in shotcrete ARS 32-1154 (A)(2)

Investigator’s Initial Observation: The cracks observe appear to be hairline in nature under 1/16'. It is unknown if these cracks are being caused due the the natural settlement of portland based products or due to the issue in item #3. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 5 - Insufficient rebar at bond beam, agreement called for #4, 4 bar bond beam ARS 32-1154 (A)(2)

Investigator’s Initial Observation: A review of the agreement shows that #3 rebar would be used 12" on center with four bars at the perimeter. However since no permit was obtained and there is no engineering as Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 8 - Coping grout cracked. ARS 32-1154 (A)(2)

Investigator’s Initial Observation: The cracks observed are hairline in nature less then 1/16" As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 9 - Cracks in pebble finish at steps. ARS 32-1154 (A)(2)

Investigator’s Initial Observation: Investigator observed cracking of the pebble tech on the steps of the pool. These steps were done as part of the project therefore as Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Complaint Item: 10 - No expansion joint at coping/paver junction ARS 32-1154 (A)(2)

Investigator’s Initial Observation: Investigator observed that there was no expansion joint installed. This is a matter of local municipality interpretation of the code. As Per Item #1 the Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection.

Compliance Observation: Per the Complainant no work has been done and per the Town of Wickenburg no application for a permit has been submitted

☐ CORRECTED ☒ NOT CORRECTED

Thereafter, Investigator Carter forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(22).

Respondent timely filed a written Answer to the Citation and the matter was referred to the Office of Administrative Hearings, an independent State agency, for an administrative hearing.

Investigator Carter testified consistently and in detail regarding the findings contained in the Written Directive. Investigator Carter testified that prior to issuing the Written Directive, he contacted the building official for the Town of Wickenburg to inquire as to whether a permit was required for Respondent’s scope of work, and if so, whether an application for a permit had been submitted. Investigator Carter learned that a permit was required and that an application for a permit had not been submitted.

After the expiration of the Written Directive, and receiving communication from Complainant confirming that Respondent had not performed any work on the project, Investigator Carter call Kevin Bruce, the Chief Building Official for the Town of Wickenburg, and was advised that a permit application still had not been submitted for approval. Investigator Carter testified that as a licensed contractor, Respondent should have known that a permit was required for the scope of work for which it contracted, and Respondent should not have commenced work on the project prior to obtaining the required permit.

Investigator Carter testified that Respondent did not request an extension of the deadline specified in the Written Directive, and that Respondent did not demonstrate due diligence in attempting to obtain the required permit, notwithstanding that Mr. Bruce stated that he was willing to work with the parties in obtaining the permit as expeditiously as possible.

Complainant testified that she had inquired of Respondent as to whether a permit was required and had faith that as a licensed contractor, Respondent would know the answer to that question. Complainant testified that after researching the issue, she discovered that Respondent has not obtained a permit for any pool project in almost five years, and Complainant opined that this was because Respondent did not want the “oversight” of the local municipality.

Complainant further testified that after the issuance of the Written Directive, she requested numerous times that Respondent provide her with the engineering specifications for the project. Respondent did not respond to the requests. Complainant also requested the engineering specifications from the shotcrete and rebar subcontractors and did not receive a response.

It was not until August 14, 2025, that Respondent applied for the permit with a sketch of the lot and pool. However, Respondent did not have a business license with the Town of Wickenburg and had to obtain one. Respondent obtained the business license on August 25, 2025.

The Town of Wickenburg requested that Respondent submit the engineering specifications for the rebar. Respondent failed to do so. Respondent admitted to Complainant that there were no engineering plans, and now Complainant cannot find an engineer to sign off on the project for permitting purposes. Complainant testified that consequently, the pool must be demolished and re-constructed.

Complainant reiterated that Respondent should have known that a permit was required and had a complete disregard for the safety of others.

Marc Ruff, Respondent’s managing partner, testified that on July 17, 2025, he went to the Town of Wickenburg’s Building Department to speak with the building official, however, the building official was unavailable. The building official emailed Respondent the following day. Respondent responded on Monday, July 21, 2025, explaining the situation. Mr. Ruff made arrangements to meet the building official at the jobsite on July 22, 2025, at 3:00 p.m. However, Complainant had a medical appointment at that time. Mr. Ruff asked to re-schedule the meeting to July 23, 2025, however, Complainant was not available on that date either. Mr. Ruff provided no explanation as to why he waited until July 17, 2025, to contact the Town of Wickenburg regarding the permit given that the Written Directive was issued on July 2, 2025.

Mr. Ruff testified that Mr. Bruce, the building official, required engineering specifications for the rebar. Mr. Ruff contacted Respondent’s engineer and sent photographs of the rebar in order to have the engineer sign off on what was already constructed. However, a supervisor was needed for such approval, and the supervisor required the “ticket” from the shotcrete contractor in order to verify the concrete mix. Mr. Ruff contacted the shotcrete contractor on September 24, 2025, and was informed that the subcontractor no longer had the “ticket.” Mr. Ruff testified that the day before the hearing, the subcontractor found the “ticket” and Respondent will submit the ticket to the engineer and then submit the engineer’s approval to the Town of Wickenburg.

Mr. Ruff admitted to not knowing that a permit was required for the job, and further admitted to not requesting an extension of the deadline for compliance with the Written Directive.

Administrative notice is taken of Respondent’s prior License record on October 28, 2025. Such prior License record reflects that Respondent’s License Number 208777 was first issued on June 29, 2005, and is active. Such prior License record also reflects that there is only the instant open Complaint, no resolved/settled complaints, and one complaint resulting in discipline 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.”

The evidence established that Respondent failed to obtain the required permit for the project and performed work without a permit. Therefore, Complainant established that Respondent departed from or disregarded a building code in a material respect that was prejudicial to Complainant, in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent failed to comply with the Written Directive. Further, Respondent failed to establish any affirmative defense to establish valid justification for such failure. Therefore, Complainant 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Number 208777 for a period of fourteen (14) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) 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 A.R.S. § 32-1101(A)(7), 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, October 30, 2025.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

James Carter

[email redacted]

Joey Penniston

[email redacted]

Aqua Essence Pools, LLC

[email redacted]

By: OAH Staff