ALJDEC decisions subject to certification as final

08F-1931-ROC · Registrar of Contractors · 2008-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2008. APPEARANCES: Agustin A. Jimenez appeared personally. Arizona Signature Pools, Inc. was represented by its attorney, Ingeborg E. Cox, Esq. 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. Arizona Signature Pools, Inc. (“Respondent”) is the holder of License No. 171733, a Class KA-05 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Agustin A. Jimenez (“Complainant”) hired Respondent to remove his existing pool surface and replace it with a new plaster finish. 3. Complainant filed a written Complaint with the Registrar claiming that Respondent failed to provide him with a white pool finish and de- lamination of the new pool surface. The Registrar designated the Complaint as Case No. 08-1931. 4. The Registrar issued a Citation and Complaint in Case No. 08-1931 alleging possible violations by Respondent of A.R.S. § 32-1154(A)(7), (15) and (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. 08-1931 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Complainant contends that the finish of his pool surface is not white as he ordered and the color is running. 7. There is credible evidence that the parties’ contract did not specify white plaster, but that Complainant did receive a white plaster pool. 8. The Registrar’s assigned inspector, Randy Cason, inspected Complainant’s swimming pool on two occasions. 9. On February 21, 2008, Inspector Cason performed a jobsite inspection of Complainant’s swimming pool. 10. After performing his jobsite inspection, Inspector Cason opined that the pool surface appeared white. He reviewed the parties’ contract and noted that the color white was not specified. 11. During his jobsite inspection, Inspector Cason did not observe any plaster breakup. However, he did notice etching in the pool plaster surface. He could not determine if the etching was caused by algae or chemicals. 12. Inspector Cason did not issue a Corrective Work Order requiring any remedial work to be performed by Respondent. 13. Inspector Cason performed a prehearing jobsite inspection of Complainant’s pool on November 21, 2008. 14. Inspector Cason observed the pool surface etching, but again could not determine if the condition was caused by chemicals or algae. He opined at the hearing that the etching resulted from homeowner maintenance of the pool. 15. Inspector Cason credibly testified that Complainant’s pool was clearer at the prehearing inspection than at the original jobsite inspection. 16. Respondent is found to have replaced Complainant’s prior pool finish with standard white plaster. 17. Complainant failed to establish that the etching of his pool surface was the result of Respondent’s act or omission. On the contrary, there is credible evidence that the etching was the result of lack of maintenance by Complainant. 18. Respondent performed its scope of work to minimum workmanship standards. 19. Neither party addressed the allegation that Respondent acted in a name other than the name appearing on its contracting license. 20. Respondent did not cause any wrongful or fraudulent act or omission in this matter.

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. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. The Administrative Law Judge concludes that Respondent’s workmanship in this matter meets minimum workmanship standards. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proving that Respondent committed a wrongful or fraudulent act resulting in substantial injury to him. 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(15), as cited in the Citation and Complaint issued by the Registrar. Complainant had the burden of proving that Respondent violated that statutory provision. He did not present any evidence to support that statutory violation. Therefore, the record does not support a conclusion that Respondent violated the statute.

RECOMMENDED ORDER The Citation and Complaint in Case No. 08-1931 shall be dismissed on the effective date of the entered Order 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, December 16, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Armando Contreras, 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