ALJDEC decisions subject to certification as final

07F-T0927W-ROC-RES · Registrar of Contractors · 2009-08-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 2009; 1:00 p.m. APPEARANCES: Complainants Mr. Conrad and Ms. Gayle Masterson represented themselves. Respondent Aqua Azul Pool Tiling Corp was represented by Mr. Scott Call, President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. This a residential matter in which Complainants contracted with Respondent Aqua Azul Pool Tiling Corp in 2006 for Respondent to install tile throughout the Complainants’ spa and swimming pool at their Tucson residence. The written proposals and invoices are in the evidentiary record and they are printed in the name of “Aqua Azul Pools.” They nowhere contain the Respondent’s assigned license numbers preceded by “ROC.” 2. Respondent’s crew performed the work defectively. The design deviated from the agreed design, tile colors were excessively mismatched, the alignment of the tiles was crooked in many places, tiles were falling off, and a black sooty substance which was probably excessive grout was coming off the tiles. 3. Complainants tried to have the problems repaired by Respondent but eventually filed a Complaint in the Registrar of Contractors’ office. Following a job site inspection by an assigned agency Inspector, the Inspector issued a written Corrective Work Order to Respondent directing Respondent to correct the tile color mismatch, design defects, missing tiles, and incorrect tile work on the accent edge. The CWO allowed Respondent 15 calendar days to perform the work which was a reasonable amount of time. Respondent returned to the job site pursuant to the CWO but failed to make the corrections ordered by the Inspector. In fact the record evidence contains extensive photographic evidence of the swimming pool area as Respondent left it, and the condition is obviously far below all workmanship standards, and in no way depicts compliance with the CWO. 4. Due to the lengthy amount of time Complainants have had to endure trying to have the Respondent perform in a workmanlike manner they have been without a swimming pool or spa for years. 5. There is an allegation that the Respondent caused the pool to leak. There is substantial evidence that it does leak, but there is insufficient evidence to prove that Respondent’s work caused the leak. 6. Complainants seek restitution in the amount of $9,657.50 they have paid to Respondent, plus additional sundry amounts for water and chemicals and their lost time, etc. The evidence does support an order of restitution in the amount paid to Respondent. 7. Notice is taken of Respondents prior license records with the Arizona Registrar of Contractors. That notice reveals that Respondent’s Class B-05 License number 206988 was revoked by the Registrar on March 6, 2009. Respondent’s Class B- License number 198953 is current. Each of the two subject licenses bears the name of Mr. Scott Byron Call as the Qualifying Party. 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, 15, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards), and 13 (namely, A.R.S. § 32-1124.B.). 3. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.15 by contracting in the name of “Aqua Azul Pools” while the subject licenses were in the name of “Aqua Azul Pool Tiling Corp.” 4. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.13 by failing to include its assigned contractor’s license numbers on its proposals and invoices preceded by “ROC” in violation of A.R.S. § 32-1124.B. 5. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.3 by the poor workmanship on the tiling job in violation of A.A.C. R4-9-108. 6. The greater weight of evidence proved that Respondent violated A.R.S. § 32-1154.A.23 by failing to comply with the written CWO of the assigned agency Inspector without valid justification. 7. There is no evidence of any wrongful or fraudulent act in violation of A.R.S. § 32-1154.A.7 independent of the other violations already concluded to have occurred. 8. A.R.S. § 32-1156.01 allows an Administrative Law Judge to order restitution be paid by a licensee to any person who is injured or whose property is damaged by the actions of the licensee. In the facts of this case restitution on the amount of $9,657.50 is warranted. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class B-05 License number 198953 and Class B- License number 206988 be revoked on the effective date of this Order unless the Registrar receives written proof acceptable to the Registrar that Respondent has paid restitution to the Complainants in the amount of $9,657.50. It is further recommended that in the event the Registrar receives such written proof on or before the effective date of this Order (40 days after the date of service appearing on the certification on the Order), then the above-provided license revocations shall not occur, and in lieu thereof Respondent shall pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154.D. Failure of Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of this Order shall result in automatic revocation of Respondent’s contractor licenses, effective on such date. No future license shall be issued to any entity consisting of persons associated with Respondent as defined at A.R.S. § 32- 1101.A.5. It is further recommended that in addition to the above-provided penalties, if any, that as an express condition for the next annual renewal of Respondent’s licenses, notwithstanding the existing or absence of any uniform assessment by the Registrar of Contractors then in effect, Respondent be required to pay an additional $500.00 into the Registrar of Contractors Residential Contractors Recovery Fund, as authorized by A.R.S. § 32-1132.B. Failure to pay such additional deposit into the Fund shall result in the rejection of any renewal application and a continued suspension of Respondent’s licenses until payment is made and the renewal(s) issued. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, August 28, 2009.

______________________________________ Grant Winston Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com