ALJDEC decisions subject to certification as final

06F-G1837W-ROC · Registrar of Contractors · 2007-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2007 APPEARANCES: Complainants appeared on their own behalf and Respondents appeared through their president, Miguel Esquivias (“Miguel”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainants retained Respondents to accomplish specified remodeling of their swimming pool. Complainants contend that there are certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainants assert that both Respondents, named herein, were involved in the pool remodel project at issue. In this regard, they presented the applicable contract into evidence, which shows that they contracted with “Az Signature Pools, Inc., dba: Mike’s Construction Co.” Miguel admitted at the hearing that both named Respondents were involved with this pool remodel project. The contract shows the license number for Arizona Signature Pools Inc. but does not show the license number of Mike’s Construction Company, the company that the contract claims is actually doing the work. b. Respondents performed and completed work on the project in the latter portion of 2005. There was no dispute that Respondents were paid in full for the work on the project. c. Sometime after the work was completed by Respondents, Complainants began to experience problems with loose tile, hollow sounding tiles, cracked tiles, cracked grout, and the deco-drain cover was lifting out of the concrete. Although Respondents made some effort to resolve these issues, these efforts were unsuccessful and Complainants ultimately filed the instant Complaint with the Registrar of Contractors. d. Subsequent to receipt of the filed Complaint, the Registrar of Contractors assigned one of its inspectors to the case. The inspector convened a jobsite inspection on or about August 2, 2006. After concluding the inspection, the inspector issued a Corrective Work Order (“CWO”), directing Respondents to correct the hollow or cracked tiles and to correct the condition of the deco drain popped-up in two areas. e. Evidence of record showed that after issuance of the CWO, Respondents performed further remedial work on the items requiring correction. The assigned inspector appeared at the instant hearing and provided testimony regarding the results of his pre-hearing inspection. According to the inspector, he still found 18 to 20 hollow tiles and one (1) tile that were cracked. In addition, he found cracks in the tile grout and the deco drain was still popped-out of place. The inspector testified that the situation with the deco drain constitutes a trip hazard and that the condition has gotten worse, since the original inspection. f. Miguel testified that he believes there is movement in the concrete slab under the pool deck and that condition is causing the problem with the tiles and the deco drain. He does not believe Respondents should be responsible, if the problem is due to concrete moving. g. Complainants testified that the original pool and deck was built by others many years before they retained Respondents to remodel the pool. In addition, they indicated that they do not cause any excessive watering around the edges of the pool deck and no grass abuts the pool deck, only rock. h. Complainants have received proposals from two other contractors to correct the problems described herein. These proposals were submitted into evidence. One states “concrete not moving” and the other indicates that it is “unlikely concrete is moving.” i. The Registrar of Contractors’ inspector testified that Respondents accepted the surface and conditions of the project when they contracted to remodel the existing pool.

3. The evidence of record was sufficient to support a finding of substandard and unacceptable workmanship on the pool remodel project, as manifested by cracked tile, cracked grout, hollow tiles, and the deco drain that is not sitting flush to the adjacent concrete surfaces. There was insufficient evidence to show that the existing concrete is moving, as claimed by Respondents. Moreover, it is held that by virtue of agreeing to remodel Complainants’ pool, Respondents effectively accepted the surface and conditions upon which the remodel work was to take place as being adequate to support a workmanlike result and are now estopped to assert that they have no liability for the problems, based on a claim that the existing concrete is not adequate to support the remodeling work.

4. The contact used by Respondents for this project is found to fail to show the proper name for either contractor, since it appears to be two entities doing business as Mike’s Construction Company. In addition, the license of Mike’s Construction Company does not even appear on the document. These deficiencies in the contract document constitute violations of the applicable charged sections of the State’s Contracting laws, regarding having a contractor’s license displayed on the contract and only doing business in the name that is set forth on the license.

5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondents were advised that in the event of a finding of a violation against Respondents, Respondents' prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondents and said notice revealed the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondents. However, the record does show that numerous matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation. Therefore, Respondents prior records are properly deemed to be fair and thus, viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondents violated the provisions of A.R.S. § 32-1154A (23), (7), (15), (3); namely Rule R 4-9-108, and 13; namely A.R.S. §32-1124B.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class KA-05 and Class C-48 license of Respondents shall be suspended until the Registrar of Contractors receives written proof that Respondents have accomplished appropriate and effective remedial work on the cracked tile, the hollow sounding tiles, the cracked tile grout and the deco drain. In addition, Respondents shall be suspended until the Registrar of Contractors receives written confirmation from them that all of their current business paperwork shows the proper license numbers and proper licensed names. It is further recommended that if Respondents comply with above- described conditions on or before the effective date of the Order entered in this matter, then the aforementioned license suspensions shall not take place. It is further recommended, in addition to the foregoing license suspensions, if any, that both of the licenses set forth in this Complaint license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondents’ compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that each Respondent shall pay the sum of $60.00 ($120 total) to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondents to pay the entire amount of the aforesaid civil penalties, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondents’ contractors’ license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondents , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, March 27, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826