ALJDEC decisions subject to certification as final

04F-L0237-ROC · Registrar of Contractors · 2004-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, June 25th, 2004; 9:00 a.m. APPEARANCES: Complainants, Mr. David C. and Ms. Kevin Ann Turner, and Respondent Mr. Rex Alan Wolterman, appeared pro per. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing in this matter was held by the Office of Administrative Hearings, in Lake Havasu City, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Respondent herein, Mr. Rex Alan Wolterman, doing business as Mohave County Pools and Spas, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-05 License number 103029. 2. Complainants, Mr. David C. and Ms. Kevin Ann Turner, contracted Respondent to build a swimming pool in their Lake Havasu City, Arizona residential lot. The pool was completed on or about February 20th, 2002. 3. Complainants had issues regarding the workmanship in the pool’s construction, and filed the instant Citation and Complaint with the Arizona Registrar of Contractors on February 10th, 2004. 4. Complainants’ complaint alleges that plaster dust was not brushed off the pool sides and now has accreted to the pool; rust marks emanating from exposed rebar; a crack in the plaster below the skimmer, and some necessary cool decking repairs. 5. The complaint was assigned to Registrar of Contractors Inspector Cliff Corlett who conducted a job site inspection on February 24th, 2004, and as a result issued a RC-C-007 letter to the parties. He stated in the letter that any issue as to the plastering was well beyond the substantial completion date, as per the minimum workmanship standards, and therefore no contractor action was required. He further stated that the plaster discoloration was caused by a combination of Lake Havasu City water quality, improper water chemistry, and/or insufficient maintenance. He stated that the rust marks were inconsistent with the allegation that they were coming from exposed rebar. He saw no plaster cracks or concluded they had been repaired. And, Inspector Corlett noted, the cool decking repairs were being completed by Respondent at the time of this inspection. The Inspector ordered no corrective work. 6. Complainants requested an administrative hearing which was duly scheduled, noticed and held. 7. At the hearing Complainants maintained that the rust was caused by exposed rebar. Respondent testified the rust stains are surface stains, not caused by rebar. Complainants testified as to hearsay statements from an employee with La Fiesta Pools who said the stains were caused by the rebar. Inspector Corlett testified differently. 8. Complainants testified the pool was not brushed after completion to remove excess plaster. Respondent states the plaster problem was caused by manganese and chemical imbalance in the water. 9. There is insufficient evidence to find that the stains and plaster problems were caused by Respondent’s defective workmanship.

CONCLUSIONS OF LAW

1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent herein is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7. and 3. 3. Complainants have brought this complaint and accordingly must bear the burden of proof. A.A.C. R2-19-119. Complainants failed to produce sufficient evidence to sustain their burden of proving that Respondent violated A.R.S. 32-1154.A.7. or 3.

RECOMMENDED ORDER

In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint L04-0237, together with the complaint on which it is based, be dismissed. Done this day, July 7th, 2004.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488