ALJDEC decisions subject to certification as final

07F-Y0186-ROC · Registrar of Contractors · 2008-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29th, 2008; 1:30 p.m. APPEARANCES: Complainants, Mr. Anthony and Ms. Lisa Williams, represented themselves. Respondent, H 2 O Falls Pools and Spas, LLC, failed to appear. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson, and via webcam remote broadcast from the Registrar of Contractors’ Yuma office. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, H 2 O Falls Pools and Spas, LLC, was, during the time of its contractual relationship with the Complainants, a contractor licensed by and doing business in the State of Arizona, holding Class B-05 License number 212595. 2. Complainants, Mr. Anthony and Ms. Lisa Williams, contracted in writing with Respondent on or about November 8th, 2005, for Respondent to construct an in-ground swimming pool and spa with accessories, at the Complainants’ Yuma residence. 3. The total contract price was $30,000.00. Canceled checks from Complainants to Respondent, in evidence, prove that they have paid Respondent $28,300 of the contract price. Complainants have paid additional monies to other swimming pool businesses to perform services that would have not been required had Respondent properly performed under the terms of the contract. 4. The pool was permitted by Yuma County on November 1st, 2005, pursuant to engineered plans also dated November 1st, 2005. Respondent began construction of the pool, but last performed work on the pool in July of 2006, which is also the last time Complainants saw Respondent’s Qualifying Party, Mr. Ruben Robles. Complainants had dealt with Mr. Robles in this matter. 5. Respondent failed to come close to substantially completing the Complainants’ project. The heater, diving board, spa jets, aerator, and salt system were never installed. The cool decking, caulking, draining tubes and air hose were never completed. 6. Many items were defectively installed. For examples, the diving board was misplaced at the wrong end of the pool pursuant to the design, to where its users would enter the pool at the same place users of the diving board would enter the pool, thereby causing an obvious hazard. The pump timer and cleaning system failed to function. The plaster had numerous cracks. The dimensions of the pool and spa substantially deviated from the plans. The pump to the spa was undersized in substantial deviation from the plans. 7. Mr. Robles failed to return phone calls, and has obviously abandoned the job, with no intention of returning to it. 8. Complainants filed the instant Complaint with the Arizona Registrar of Contractors on March 14th, 2007. The Complaint was assigned to Registrar of Contractors Inspector Daryl McCloskey. 9. Inspector McCloskey performed a job-site inspection on March 28th, 2007. As a result of his findings at the job site he issued a written Corrective Work Order to Respondent dated April 17th, 2007. He verified all 19 items listed in the Complainants’ Complaint. He directed Respondent to correct the defects and properly complete the project within 15 calendar days, which was reasonable amount of time. 10. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors, which is poor indeed. Respondent’s license is now revoked, having been revoked by the Registrar pursuant to two other Complaints. One Complaint against the Respondent now is before the Registrar’s Residential Contractors Recovery Fund.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1115, 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.1, 2, 7, 23, and 3 (namely A.A.C. R4-9-108, Workmanship Standards), and 13, namely A.R.S. 32- 1158.01. 3. The undisputed evidence proved that Respondent abandoned the job without legal excuse and substantially deviated from the plans and specifications, in violation of A.R.S. 32-1154.A.1, and 2, respectively. 4. Respondent’s workmanship was considerably below workmanship standards in violation of A.R.S. 32-1154.A.3, namely A.A.C. R4-9- 108. 5. Respondent failed to comply with the Inspector’s written Corrective Work Order without any valid justification, in violation of A.R.S. 32-1154.A.23. 6. There is insufficient evidence to conclude that Respondent violated A.R.S. 32-1154.A.13 by violating A.R.S. 32-1158.01. 7. There is insufficient evidence to conclude that Respondent violated A.R.S. 32-1154.A.7 by committing any wrongful or fraudulent act independently of the other violations. 8. The above violations, coupled with Respondent’s poor license record justify revocation of the subject license. Complainants may proceed with a claim to the Arizona Registrar of Contractors’ Residential Contractors’ Recovery Fund, and, if all requirements are met, receive an award from that source.

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 212595 be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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 31st, 2008.

______________________________________ Grant Winston Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488