ALJDEC decisions subject to certification as final

07F-M2255W-ROC · Registrar of Contractors · 2008-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2008 APPEARANCES: Complainant David Parton appeared on his own behalf; no one appeared for Kool Pools and Spas Inc. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________

The issue presented is whether Respondent Kool Pools and Spas Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Kool Pools and Spas Inc. (“Kool Pools”) holds Class KA-05 License number 227760. 2. David Parton (“Complainant”) owns a home at 2251 N. 32nd Street, #31, Mesa, Arizona.

3. Complainant entered a contract with Suncoast Pools and Spas, License No. 176509 (“Suncoast Pools”) in which Suncoast Pools agreed to build a pool at Complainant’s home. 4. Complainant filed with the Registrar of Contractors (“ROC”) Complaint No. M07-2255 against Suncoast Pools in which Respondent listed 14 alleged defects related to the pool’s construction. 5. ROC assigned Inspector Geoff Galgan to investigate the Complaint. 6. On or about July 18, 2007 Mr. Galgan conducted a jobsite inspection. 7. On July 18, 2007, Mr. Galgan issued a Corrective Work Order (“CWO”) listing the 14 items from the Complaint and a 15th item discovered during the inspection. 8. The CWO directed Suncoast Pools to hire a licensed contractor to correct by appropriate means 14 of the 15 items (i.e., all items except item 6 for which Mr. Galgan found that no action was required). 9. On December 7, 2007 ROC issued Citation and Complaint Nos. M07-2255W and M07-2255 naming Kool Pools and Crystal Pools and Spas dba Suncoast Pools as Respondents. 10. The Citation and Complaint alleged that the Respondents may have violated A.R.S. § 32-1154(A)(1), (A)(3) namely R4-9-108, (A)(7), (A)(23). 11. On December 18, 2007, ROC received from Kool Pools a letter signed by Alan Barr in which Kool Pools stated that it is a “separate entity than Crystal Pools DBA Suncoast Pools #176509. The purchase was an asset sale only we did not assume any of the liabilities or warranties of Suncoast.” See answer in administrative record. 12. On February 29, 2008, ROC issued a Notice of Hearing in Docket No. 07F- M2255W-ROC naming Kool Pools as the Respondent and setting the matter for hearing at 9:00 a.m. March 31, 2008. 13. On March 3, 2008, ROC received from Kool Pools a letter stating that it has no involvement in Case # M07-2255W. ROC forwarded a copy of that letter (and the Notice of Hearing that Kool Pools had attached) to the Office of Administrative Hearings (“OAH”), which was received at OAH on March 7, 2008. 14. On March 5, 2008, in Docket No. 07-M2255-ROC, ROC issued an Order Quashing Request for Hearing and Request to Vacate Hearing. In that Order, ROC states that it had requested hearings be scheduled for Cases M07-2255 (Suncoast Pools) and M07-2255W (Kool Pools), but because Suncoast Pools had not answered the Citation and Complaint it was in default and no hearing was warranted. 15. At 9:00 a.m. March 31, 2008, no representative appeared for Kool Pools. After a 15 minute grace period, the Administrative Law Judge convened the hearing in Kool Pools’ absence. Complainant appeared and testified and had admitted into evidence an exhibit booklet consisting of 17 pages (plus a Table of Contents) and 12 photographs. Administrative notice was taken of license information for Suncoast Pools and Kool Pools taken from ROC’s website and the administrative record. 16. Mr. Parton provided credible testimony that was consistent with the problems Mr. Galgan listed on the CWO. Mr. Parton also testified that he is concerned that the plaster and concrete may not be thick enough and he submitted photographs taken during construction of the area near the pool light in support of this concern. 17. Mr. Parton provided credible testimony that in January 2007 he spoke to representatives from Suncoast Pools and was told that when the water in the pool warmed up Suncoast would make repairs. In March or April 2007, Mr. Parton called the telephone number for Suncoast Pools and spoke with the same secretary that he had been dealing with, but was told that the company had new owners (i.e., Kool Pools) and was led to believe that Kool Pools would honor the warranty on his pool. 18. About one week later he again called the telephone number that he had been using for Suncoast Pools and he spoke to Mr. Alan Barr, president of Kool Pools. Mr. Barr told Mr. Parton that Kool Pools was not responsible for the work of Suncoast Pools. Mr. Barr told Mr. Parton that the old owner of Suncoast Pools was operating under the names Crystal Pools and Suncoast Pools. Mr. Parton was confused about which company would be responsible for his warranty because at that time both Kool Pools and Crystal Pools were using the name Suncoast. 19. Shortly after that, on about May 31, 2007, Mr. Parton received a letter on Suncoast Pools & Spa letterhead showing that Mr. Barr was the owner of Suncoast Pools. That letter informed Mr. Parton that the old owner of Suncoast Pools and Spas would be handling all warranty information and that the old owners could be contacted at: Crystal Pools and Spas, ROC176509, Jeffery Michael McDonald, Suite #100, 7835 E Redfield Rd, Scottsdale, AZ, 85260, 602-762-7665 Office, 602-971- 4499 Fax. 20. Mr. Parton has paid Suncoast Pools the total contract price of $51,076.00. 21. ROC records show that Mr. Jeffery Michael McDonald is the qualifying party on License No. 176509 (Suncoast Pools) and he was the qualifying party on License No. 227760 (Kool Pools) until May 10, 2007. 22. ROC records show Kool Pools was known as Suncoast Pools and Spas until a name change was made on October 11, 2007.

CONCLUSIONS OF LAW Complainant has the burden of proof to show that Respondent has violated A.R.S. § 32-1154(A) as alleged in the Citation and Complaint. The standard of proof is that of the preponderance of the evidence. See A.A.C. R2-19- 119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). The preponderance of evidence shows that Kool Pools And Spas, Inc. should bear responsibility for Suncoast Pools and Spas actions in this matter. The ROC license information shows that Kool Pools was formerly known as Suncoast Pools and Spas and that Mr. McDonald was the qualifying party for each entity, and documents show that Mr. Barr is or has been the owner of both Kool Pools and Suncoast Pools. Kool Pools failed to appear at a properly noticed hearing and presented no evidence to the contrary. Kool Pools did submit two letters to the ROC that purport to show that there is no relationship between the two entities, but these letters are given no weight because the author, Mr. Barr, was not present at the hearing and, consequently, was not subject to cross examination about those letters. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The preponderance of evidence shows that Kool Pools violated A.R.S. § 32- 1154(A)(1) in that it refused to perform warranty work on Mr. Parton’s pool. Under A.R.S. §32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the Registrar.” In this case, ROC charged Respondent with violating A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. The preponderance of evidence shows a violation of A.R.S. § 32-1154(A)(3) because there is substantial evidence to show that the pool does not meet the workmanship standards. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action…without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The preponderance of evidence shows that there has been a violation of A.R.S. § 32-1154(A)(23) because the corrective work set forth in the CWO has not been completed. Under A.R.S. §32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act…resulting in another person being substantially injured.” The proven violations of A.R.S. §32-1154(A)(1) and (A)(3) are also violations of A.R.S. § 32-1154(A)(7) because Mr. Parton has been substantially injured in that he has paid the full contract price for a pool that does not meet the required workmanship standards or the terms of his contract. Because Mr. Parton has met the burden of proof to show that Kool Pools and Spas, Inc. violated A.R.S. § 32-1154(A)(1), (A)(3), (A)(7) and (A)(23), discipline against Respondent’s license is warranted. RECOMMENDED ORDER

IT IS RECOMMENDED that within thirty days of the effective date of the Order entered in this matter, Kool Pools and Spas, Inc.’s Class KA-05 license (No. 227760) shall be suspended until the ROC receives written proof that Kool Pools and Spas, Inc. has hired at its sole expense, a properly licensed contractor to perform appropriate, effective, and workmanlike corrective work pursuant to the terms of the CWO. If the ROC receives written proof that Kool Pools and Spas, Inc. has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. M07-2255W shall be closed. 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, April 15, 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 ___________________________ -----------------------

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