ALJDEC decisions subject to certification as final

07F-M2191-ROC · Registrar of Contractors · 2009-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2009. APPEARANCES: Alex Plaza appeared personally. Pacific Pools and Spas, LLC, doing business as Pacific Pool and Spas, was represented by its authorized employee, Mark Bowers. 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. Pacific Pools and Spas, LLC, doing business as Pacific Pools and Spas (“Respondent”), is the holder of License No. 122185, a Class B-05 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. In September 2006, Alex Plaza (Complainant) contacted Respondent to perform warranty work to his swimming pool. 3. In November 2006, Respondent caused the warranty work to commence. 4. As part of the warranty work, Respondent caused Complainant’s swimming pool to be emptied of water. Respondent left Complainant’s pool empty and exposed to the elements for approximately three weeks. As a result of sitting empty for that period of time, water and construction debris collected in the deepest portion of the pool. That resulted in the pool becoming hydrated in the area and the pool surface becoming stained. 5. Respondent caused additional remedial repairs to the area of the pool damaged due to the collection of water and debris while the pool stood empty of water. 6. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. The Registrar designated Complainant’s Complaint as Case No.M07-2191. 7. On July 11, 2008, the Registrar’s assigned inspector, Dennis Cook, performed a jobsite inspection to view Respondent’s workmanship. That inspection resulted in the issuance of a Corrective Work Order directing Respondent to perform remedial repairs to tiles and staining in Complainant’s pool. 8. The Registrar issued a Citation and Complaint in Case No. M07-2191, which alleged possible violations by Respondent of A.R.S. § 32-1154(A) (7), (3), specifically A.A.C. R4-9-108, and (23). 9. The Registrar forwarded Case No. M07-2191 to the Office of Administrative Hearings, an independent agency, for formal hearing. 10. Inspector Cook credibly testified that during his initial inspection of Complainant’s pool on July 11, 2008, he clearly observed stains in the bottom of Complainant’s pool resulting from debris and water sitting having sat in the bottom of the pool during Respondent’s warranty work. 11. On December 23, 2008, Inspector Cook performed a pre-hearing jobsite inspection. He opined that the grout work required to be repaired by Respondent pursuant to the Corrective Work Order had been accomplished to minimum workmanship standards. 12. Inspector Cook further determined that the pool surface looked good. 13. Respondent’s authorized employee, Brian Anderson, testified that the pool did not meet minimum workmanship standards following the warranty repairs. Respondent performed further repairs. 14. Mr. Anderson testified that he saw nothing wrong with the pool surface at the pre-hearing inspection. 15. Greg Garrett of Applied Materials Technologies testified as Respondent’s expert witness. 16. Mr. Garrett has inspected Complainant’s pool on May 3, 2007. 17. Mr. Garrett was present at the pre-hearing inspection. 18. During the pre-hearing inspection, Mr. Garrett performed a test of the water in Complainant’s pool. Maintenance of the pool water’s chemistry is a homeowner’s responsibility. 19. Mr. Garrett’s test for cyanuric acid resulted in a reading of 270. The normal range for cyanuric acid is between the range of 30 to 50. 20. Mr. Garrett opined that if Complainant’s pool were a public pool, it would be closed by local authorities due to the high cyanuric acid reading. 21. As a result of the high cyanuric acid reading, Mr. Garrett opined that there is some highlighting of Complainant’s pool plaster due to the chemical imbalance. However, he did not observe any of the prior stains in the pool caused by Respondent’s deficient workmanship. 22. Respondent is found to have complied with the Registrar’s Corrective Work Order to minimum workmanship standards. 23. Although Complainant was inconvenienced by Respondent leaving his pool empty for three weeks while performing the warranty work, Complainant failed to establish that he has been substantially injured by 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. R 2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint for Case No. M07-2191 issued by the Registrar. Respondent complied with the Registrar’s Corrective Work Order to minimum workmanship standards. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint for Case No. M07-2191 issued by the Registrar. Respondent complied with the Registrar’s Corrective Work Order to minimum workmanship standards. 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint for Case No. M07-2191 issued by the Registrar. Complainant failed to establish that Respondent substantially injured him.

RECOMMENDED ORDER The Citation and Complaint in Case No. M07-2191 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, January 26, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Armando Contreras, 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