ALJDEC decisions subject to certification as final

06F-T1277-ROC · Registrar of Contractors · 2007-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9th, 2007; 9:00 a.m. APPEARANCES: Complainants, Mr. Richard Wilke and Ms. Sassia Niederste- Hollenberg, represented themselves. Respondent, Pinnacle Pools, Inc., was represented by Mr. Robert Hobson, Owner. Respondent All Seasons Yard Care, LLC, failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing in these consolidated cases was held in the Office of Administrative Hearings, Tucson. 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, Pinnacle Pools, Inc., 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 107574. 2. Respondent All Seasons Yard Care, LLC (“All Seasons”), is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-21 License number 203776. 3. Complainants, Mr. Richard Wilke and Ms. Sassia Niederste- Hollenberg, contracted with Pinnacle Pools for the installation of a swimming pool spa, barbecue, and fire-pit at their Tucson residence. The contract was entered into December 7th, 2005. Pinnacle Pools subcontracted some of the work to All Seasons, and Aussie Electric, Inc. Evidently it was Aussie Electric who performed the wiring. Respondent Pinnacle Pools sold, but did not install, all the material and fixtures. 4. Work was substantially complete in June of 2006. Complainants were dissatisfied with several aspects of the project and filed two administrative Complaints with the Registrar of Contractors on or about June 26th, 2006; one against Pinnacle Pools and the other against All Seasons. 5. The Complaints were assigned to Registrar of Contractors Inspector James R. Morris, who conducted a job site inspection and issued two written Corrective Work Orders, one each to Pinnacle Pools and All Seasons, on July 28th, 2006. The CWOs directed Respondents to make a number of corrections to the project within 15 calendar days, which was a reasonable amount of time. 6. Complainants filed a second and third Complaint against Pinnacle Pools in the Registrar’s office on August 18th, and 30th, 2006. Inspector Morris conducted another job site inspection, and issued a second Corrective Work Order to Pinnacle Pools on November 14th, 2006. The second CWO again directed Pinnacle Pools to make certain corrections within reasonable amount of time. 7. Respondents did not make the ordered corrections and Complainants requested an administrative hearing. Citation and Complaints issued from the Registrar to each Respondent. Pinnacle Pools was cited with possible violations of A.R.S. 32-1154.A.2, 7, 17, 23 and (namely A.A.C. R4-9-108, Workmanship Standards), and All Seasons was cited with possible violations of A.R.S. 32-1154.A.2, 7, 23 and (namely A.A.C. R4-9-108, Workmanship Standards). 8. Complainants attended and testified at the hearing. Pinnacle Pools was represented by Mr. Robert D. Hobson, Qualifying Party, who also testified. Inspector Morris attended and testified at the hearing. All Seasons failed to appear at the hearing. 9. The credible testimony of Inspector Morris was that the wiring of the spa controls present a tripping hazard in violation of the applicable code requirements. This condition of this exposed and unprotected wiring must be properly corrected so as to eliminate any tripping or other safety hazard in conformity with all applicable codes. Also, the Inspector testified that the cutting and placement of the stones is unacceptable for being square cut at areas where the cut should have been at an angle, and some stones are loose and need to be secured properly. Also, Inspector Morris testified that Pinnacle Pools had sold all the barbecue fixtures, but is not licensed to install such fixtures, which meant Pinnacle Pools was contracting beyond the scope of its license. 10. Complainants’ testimony buttressed the Inspector’s on these points. However, Complainants still maintain that the pool filter cartridge sold and installed by the Respondents was improper, and resulted in the pool not being properly cleaned. Complainants seek a monetary award of damages for the cost necessary to purchase and install a new cleaning system. Inspector Morris could not verify this claim of the cleaning system, and Pinnacle Pools maintains that the system sold and installed was per the contract, and before All Seasons was given any chance to correct or enforce the warranty (if anything was in fact amiss), Complainants had already purchased a new cleaning system and installed it. There appears to be insufficient evidence to find that the cleaning system was defective, or that Respondents are responsible for pool cleaning or monetary damages. 11. Respondents must return to the job site and properly correct the exposed wiring so as to eliminate any tripping or other safety hazard, and reinstall the stone work at the areas where there were improper cuts made, and insure that all loose stones are replaced, and all stones are adequately and properly secured to the surface where they belong. 12. Notice is taken of Respondents’ prior license records with the Arizona Registrar of Contractors.

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 Pinnacle Pools, Inc., is charged in Citation and Complaint T06-1277 with possible violations of A.R.S. 32-1154.A.2, 7, 17, 23, and 3 (namely A.A.C. R4-9-108, Workmanship Standards). The greater weight of evidence proved that Pinnacle Pools did violate A.R.S. 32-1154.A.2, by departing from plans, specifications and codes; A.R.S 32-1154.A.17, by contracting beyond the scope of its license in selling equipment which it is not licensed to install; A.R.S. 32-1154.A.23, by failing to properly correct the items in the CWO within a reasonable amount of time; and A.R.S, 32-1154.A.3, by the poor workmanship of the wiring and stone work. 3. Respondent All Seasons is charged in Citation and Complaint T06- 1278 with possible violations of A.R.S. 32-1154.A.2, 7, 23 and 3 (namely A.A.C. R4-9-108, Workmanship Standards). The greater weight of evidence proved that All Seasons did violate A.R.S. 32- 1154.A.23 and 3 by the poor workmanship installing the stone and failing to properly correct the items in the Inspector’s CWO within a reasonable amount of time. 4. There is insufficient evidence to conclude that either Respondent violated A.R.S 32-1154.A.7, independently of the violations already concluded. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent Pinnacle Pools, Inc., Class B-05 License number 107574 and Respondent All Seasons Yard Care, LLC, Class K-21 License number 203776, be suspended until such time as the Registrar receives written proof that the problems found with the exposed wiring and improperly installed stone work have been properly corrected. It is further recommended that in addition to the above-provided license suspensions, if any, Respondent Pinnacle Pools’ license shall be placed on disciplinary probation for a period 90 days, and Respondent Pinnacle Pools is admonished that a repeat violation of selling equipment it is not licensed to install may result in more severe disciplinary measures. It is further recommended that in the event the Respondents properly accomplish the above-described corrective action on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspensions shall not take place and, with the exception of the aforementioned probationary period for Pinnacle Pools’ license, Citation and Complaints T06-1277 and T06-1278 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days from the date of that certification. Done this day, July 10th, 2007.

______________________________________ Grant Winston 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488