ALJDEC decisions subject to certification as final

07F-1020-ROC · Registrar of Contractors · 2007-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 5, 2007. APPEARANCES: Martha Ashworth appeared personally. La Fuente Pool Plastering, L.L.C. was represented by its attorney, Everett Butler, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. La Fuente Pool Plastering, L.L.C. (“Respondent”) is the holder of License No. 199670, a Class C-36 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Martha Ashworth (“Complainant”) hired Respondent to resurface the swimming pool at her rental house. 3. Fausto Bojorquez is Respondent’s qualifying party and member. Mr. Bojorquez has over twenty-five years of experience resurfacing swimming pools. 4. Mr. Bojorquez and his son removed as much of the pool’s plaster as they could, thereby exposing the gunnite substrate. 5. After completion of the resurfacing project, Complainant complained to Respondent that it had not removed enough plaster as had been recently performed by another pool contractor on her personal residence. She refused to pay the outstanding balance owed for the project. 6. Complainant filed a written complaint with the Registrar concerning her belief that the old plaster had not been properly removed. 7. In response to the complaint, the Registrar issued a Citation and Complaint in Case No. 07-1020 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7) and (3), namely R4-9-108. 8. The Registrar forwarded Case No. 07-1020 to the Office of Administrative Hearings, an independent agency, for formal hearing. 9. Although Complainant presented photographic evidence of the removal of plaster at her personal residence, she did not present any photographic evidence of Respondent’s work. 10. Mr. Bojorquez credibly testified that the plaster in the rental house swimming pool was removed using an air gun with chisel. He said he removed as much plaster as he could. He further testified that he and his son spent three days prepping the pool surface for the new surface. 11. Respondent’s removal of the pool plaster meets minimum workmanship standards. 12. Respondent’s removal of the pool plaster was not a wrongful act and it did not cause substantial injury to Complainant. 13. Complainant eventually paid the remaining balance of the contract price to Respondent.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(7) and (3), namely R4-9-108, as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER

The Citation and Complaint issued in Case No. 07-1020 shall be dismissed on the effective date of the Order entered in this matter. 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 will be 40 days from the date of that certification.

Done this day, September 20, 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