ALJDEC decisions subject to certification as final

06F-Y0123-ROC · Registrar of Contractors · 2007-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26th, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. James Williams, appeared and represented himself. Respondent, Specialty Pools and Spas, Inc., was represented by Mr. William S. Dieckhoff, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings in Tucson, and via webcam remote site in Yuma, 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 Specialty Pools and Spas, 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 151569. 2. This is a residential matter concerning Respondent’s replastering and retiling of an in-ground swimming pool at what is now the residence of Complainant, Mr. James Williams. 3. Respondent replastered and retiled an existing swimming pool in the home when it was owned by the previous owners, a family with the surname of Zamora. The work was completed in 2005. Complainant purchased the home from the Zamoras in the summer of 2005. Complainant testified at the hearing that a few months after closing on the home and taking possession around August or September of that year, problems associated with the swimming pool became evident to him. 4. Complainant contacted Respondent to come to the home and address these perceived problems. Respondent did come to the home, but did not take action sufficient in the mind of Complainant to remedy what he considered the problems. Complainant filed the instant Complaint with the Arizona Registrar of Contractors on or about December 29th, 2005. The Complaint raised issues with the replastering (resurfacing) and the pump that was in the pool. 5. The Complaint was assigned to then Registrar of Contractors Inspector Greg Altherr. Inspector Altherr conducted a job-site inspection March 1st, 2006, and issued a written summary of his opinions formed as a result of the inspection dated March 3rd, 2006. Inspector Altherr’s letter informed the parties: “Pool pump is operating properly. Spots on pool plaster are not shown to be from plaster failure.” Hence, the Inspector did not require the Respondent to take any remedial action. Complainant took no further action, and the Complaint was closed March 20th, 2006. 6. The Complaint was reopened by the Registrar of Contractors in July, 2006, and reassigned to another agency Inspector, Geoff Galgan. Inspector Galgan conducted his own job site inspection and as result issued a letter to the parties dated September 5th, 2006. Inspector Galgan found no cause to order the Respondent to perform any corrective action as to the Complainants’ allegations concerning the pump, black alga, visible trowel marks, or pool discoloration. Complainant disagreed, still contending that these were defects in need of correction by the Respondent. 7. The hearing record produced insufficient evidence to find in Complainant’s favor on these issues. 8. Respondent only changed out the pump, and in doing so replaced two connecting lines. There is no substantial evidence that the pump is not functioning as intended, and in fact two ROC Inspectors found that it was properly functioning. 9. Complainant does have a problem with black alga, but there is no sufficient evidence that it was caused by Respondent’s plastering or other work on the pool. Algae, including black alga, typically are caused by failure of the homeowner, or a pool service company hired by the homeowner, to maintain proper water chemical balance. 10. There are some minor visible trowel marks on the plaster, but they are within industry standards for such plastered pools. The same is found as to the allegation of pool discoloration. Photographic evidence submitted by Complainant are insufficient to find contrary to the opinion of the agency Inspector that these are minor and do not warrant corrective action to be ordered. 11. Complainant submitted as evidence a copy of a bid by another pool company to replaster the pool, but there is no evidence that that company opined that the replastering was necessary due to defective condition. Rather, it was but a response to a request for a bid from the Complainant.

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 is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, and 3, namely A.A.C. R4- 9-108, Workmanship Standards. 3. There is no substantial evidence of any workmanship defects by Respondent in violation of A.A.C. R4-9-108, nor of any wrongful or fraudulent actions by Respondent in violation of A.R.S. 32- 1154.A.7.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint Y06-0123, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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 after the date of that certification. Done this day, April 30th, 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