ALJDEC decisions subject to certification as final

07F-M0265-ROC-COM · Registrar of Contractors · 2008-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2008 APPEARANCES: Victoria Tuione appeared for Complainants; Respondent was represented by its owners Kent Dawson and Arnold Elzy. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. Respondent, A and K Custom Pools LLC holds Class B-05 License number 195785. 2. Kent Dawson and Arnold Elzy are members/owners of the Respondent LLC. Mr. Dawson is Respondent’s qualifying party. 3. Respondent constructed a pool and spa for Complainants Nomani and Victoria Tuione. 4. On April 13, 2007, ROC issued a final Decision and Order that required Respondent to pay a civil penalty and to properly rectify the items detailed in Complainants’ Complaint and ROC’s written directives. 5. This instant matter was held pursuant to the Order of the Registrar of Contractors (“ROC”) entered on July 12, 2007, directing that a compliance hearing be held to determine whether or not Respondent has complied with the ROC’s directives. 6. On or about November 17, 2006, ROC Inspector Geoff Galgan issued a Corrective Work Order (“CWO”) that required Respondent to correct only item 5: “Pool decking is lifting around pool area – IN THIS INSPECTOR’S OPINION, DECKING HAS RAISED IN SOME AREAS. CONTRACTOR TO CORRECT BY APPROPRIATE METHOD.” The instant hearing was limited to whether or not Respondent had corrected item 5. 7. Mr. Dawson, Mr. Elzy, Ms. Victoria Tuione and Inspector Galgan testified. 8. Mr. Elzy’s testimony is given no appreciable weight because he testified that he had not been at the Complainant’s home since April 2007, but under further questioning, he admitted that he had been to the home on the day before the hearing. Consequently, Mr. Elzy is deemed unreliable and his testimony is found to be not credible. 9. Inspector Galgan conducted a site inspection on December 28, 2007. Inspector Galgan testified that Complainant was present at the December 28th inspection, but no representative for Respondent was present. 10. Inspector Galgan observed that some corrective work had been completed, but it was his opinion that the pool deck was not in compliance with the minimum workmanship standards because there were areas in which there was a separation of more than 1/8th inch between the pool deck and the existing deck. Inspector Galgan found that in some areas the separation was 1/4th to 5/8th of an inch, but that there were also areas where the separation does not exceed the 1/8th inch maximum allowed under the workmanship standards. 11. Mr. Dawson testified that Respondent did properly repair the deck, but the problem will continue to recur because the drainage around the deck is not proper and/or because there are expansive soils at the site. Mr. Dawson asserts that Respondent’s contract with Complainant relieves Respondent of responsibility for these conditions. 12. Mr. Dawson acknowledged that Respondent and Complainant had tested the drainage around the pool deck, but according to Mr. Dawson, that testing was not sufficient to show that the problems with the deck were not being caused by the drainage conditions. 13. On February 23, 2007 ROC received from Respondent a letter dated February 14, 2007 that states that Respondent had repaired the pool deck lifting by applying silicone caulking to the existing gap. On May 17, 2007 ROC received from Respondent a letter dated May 15, 2007 that Respondent had repaired the deck to meet ROC’s standards. Neither of these letters mentions expansive soils or drainage issues. See letters, in administrative record. 14. Respondent had copies of several photographs admitted into evidence that, in Mr. Dawson’s opinion, show that the deck was in compliance as of April 2007. These photographs are given no appreciable weight because there was no evidence adduced to show whether these photographs are of areas that Inspector Galgan determined were not in compliance on December 28, 2007. 15. Complainants request that Respondent’s license be suspended until Complainant’s pool deck is properly repaired. 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. The sole issued considered at the instant hearing was whether Respondent had properly performed the corrective work related to the pool deck as set forth in Inspector’s Galgan’s CWO. 3. The preponderance of evidence of credible evidence shows that that corrective work has not been completed and the pool deck does not meet ROC’s minimum workmanship standards. 4. Respondent asserts that the work was properly done, but that site conditions are such that any repairs will be effective only temporarily. But Respondent presents no substantial evidence to show that either site conditions or drainage is the reason that the pool deck does not meet the workmanships standards, nor does Respondent offer any substantial evidence to show that there has been a change in the pool deck over time. Further, the Administrative Law Judge notes that none of the correspondence from Respondent in the administrative record makes any reference to site conditions or drainage issues as the cause of the problems with the pool deck. 5. Respondent also asserts that its contract absolves it of any responsibility for site conditions and drainage issues. But this assertion is not persuasive because ROC is generally not the proper forum for a contract dispute, and to the extent that such a defense was to be considered, that defense should have been raised before the April 13, 2007 final Decision and Order was issued. 6. Because the preponderance of evidence shows that Respondent has not complied with ROC’s directives, discipline against Respondent’s license is warranted. 7. Over a year has gone by since the CWO was issued in November 2006 and Respondent has proven unwilling or unable to correct the pool decking. Consequently, Respondent should be directed to hire another appropriately licensed contractor to properly repair the pool deck.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B-05 License number 195785 be suspended until the Registrar of Contractors receives written proof that Respondent has caused another appropriately licensed contractor to properly perform the corrections contained in Inspector Galgan’s Corrective Work Order dated November 17, 2006. IT IS FURTHER RECOMMENDED that Respondent’s Class B-05 License number 195785 be placed on probation for 180 days. 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, January 7, 2008

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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