ALJDEC decisions subject to certification as final

06F-L0234-ROC-com · Registrar of Contractors · 2007-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 27, 2007. APPEARANCES: Betty Tannery appeared personally. Dura Sun, Inc., doing business as Sun Saver Fiberglass Pools, was represented by its president and qualifying party, Charles Erbe. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ This matter came on for a compliance hearing to determine whether Respondent complied with the parties’ prior settlement agreement in this matter. Based upon the evidence of record at the compliance hearing, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Dura Sun, Inc., doing business as Sun Saver Fiberglass Pools (“Respondent”), is the holder of License No. 056026, a Class B-05 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Jerry and Betty Tannery (“Complainants”) had hired Respondent to construct a swimming pool and pool decking at their residence in Lake Havasu City, Arizona. 3. Complainants filed a written complaint with the Registrar alleging statutory and regulatory violations by Respondent on their project. 4. The Registrar designated Complainants’ complaint as Case No. L06-0234. 5. The Registrar forwarded Case No. L06-0234 to the Office of Administrative Hearings, an independent agency, for formal hearing. 6. On August 2, 2006, Complainant Betty Tanner and Respondent’s corporate officer and qualifying party, Charles Amile Erbe, appeared before Administrative Law Judge Brian E. Smith for a formal hearing. 7. At the commencement of the formal hearing, the parties announced that they had reached a settlement agreement. The terms of the settlement agreement were read into the record and included in Judge Smith’s Administrative Law Judge Decision and Order Vacating Hearing based on Settlement Agreement. Under the terms of the settlement agreement, Respondent agreed to perform specified remedial repairs. 8. By letter dated October 2, 2006, Complainants informed the Registrar that Respondent had failed to comply with the parties’ settlement agreement. 9. By letter dated December 4, 2006, Complainants requested a compliance hearing due to Respondent’s alleged failure to comply with the settlement agreement. 10. The Registrar issued an Order Reopening Complaint and Setting Compliance Hearing. 11. On July 24, 2007, the Registrar issued a Notice of Compliance Hearing in Case No. L06-0234 “in order to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on September 15, 2006, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 12. At the compliance hearing, the Registrar’s assigned inspector, Cliff Corlett, testified that repairs are visible. 13. Control joints in the pool deck have been filled and are cracking. 14. Inspector Corlett opined that the control joints in the pool deck are unacceptable because they do not line up. 15. There continues to be an excessive crack in the area of the pool’s skim basket. Except for that area, Inspector Corlett testified that all other cracks are within acceptable tolerances. 16. The pool deck’s coating repairs are very noticeable. 17. Mr. Erbe testified that the pool deck texture should be repaired 18. Mr. Erbe also testified that the control joints in the pool deck need to be straightened. 19. Mr. Erbe candidly admitted that additional work needs to be performed, but he put the blame for the failure to complete the work on Respondent’s subcontractor. 20. Respondent is found to have breached the terms of the settlement agreement by failing to perform, or causing to be performed, the agreed upon repairs. 21. Respondent failed to comply with the Corrective Work Order previously issued by Inspector Corlett. 22. Complainants have been substantially injured by Respondent failing to correct its deficient workmanship. Complainants have had to deal with Respondent’s deficient workmanship for over two years. 23. A review of the Registrar’s official records reveals that Respondent’s contracting license has been revoked in two prior disciplinary actions. The first revocation was on February 2, 2007 in Case No. L06- 0434. The second revocation was on August 2, 2007 in Case No. L07- 0077. 24. As a result of the revocations of its contracting license, Respondent cannot perform, or cause to be performed, any remedial action required to bring Complainants’ pool and pool deck within minimum workmanship standards.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this matter. 2. Respondent breached the parties’ settlement agreement by failing to complete, or cause to be completed, remedial repairs to its deficient workmanship which had previously been ordered to be timely completed by the Registrar’s Corrective Work Order. 3. Pursuant to A.R.S. § 32-1154(C), the prior revocations of Respondent’s contracting license do not deprive the Registrar of jurisdiction to impose discipline against Respondent in this matter due to Respondent’s failure to substantially comply with the parties’ settlement agreement.

RECOMMENDED ORDER

Respondent’s License No. 056026 shall be revoked in Case No. L06-0234 on the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision on Compliance Hearing by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days from the date of that certification. Done this day, September 10, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

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

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