ALJDEC decisions subject to certification as final

08F-4718-ROC · Registrar of Contractors · 2009-10-09

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 2009

APPEARANCES: Complainant Richard Sexton appeared and testified on his own behalf; Respondent was represented by its President and Qualifying Party Bryce Campo.

WITNESSES: For Complainant: Richard Salter

For Respondent: Bryce Campo

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Richard Salter dba Greater Arizona Custom Construction brings this action claiming that he is owed $4,100.00 from Respondent Advanced Pool Concepts, Inc. for work Complainant performed as a subcontractor on a pool remodeling job for which Respondent was the primary contractor. Complainant also alleges that Respondent failed to get appropriate permits for the job and hired a replacement subcontractor who was not licensed to do the type of work required. Respondent denies that any further payment is owed to Complainant and counters that Complainant’s poor work required termination of the subcontract. Respondent denies the other allegations as well. This tribunal entered the complaint file received from the Registrar of Contractors into the record, with the addition of Complainant’s Exhibits A through F and Respondent’s exhibits that are bound in a white folder that contains unmarked documents (most of which are in the complaint file) and Exhibits 5, 6, 11, 12, 16, and 17 (all photographs). The parties presented evidence at the hearing, and testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation of laws that apply to licensed contractors. FINDINGS OF FACT 1. Respondent Advanced Pool Concepts, Inc. is the holder of a class B-05 license (No. 179489), a general swimming pool contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to build swimming pools and spas, including only fencing around the pool and utilities to the pool equipment.[1] Bryce Campo is Respondent’s President and Qualifying Party. 2. Complainant is a sole proprietor and is the holder of a class B- general contracting license allowing Complainant to perform work as a general contractor on residential projects. 3. Respondent hired Complainant in December 2007 to build a waterfall feature, fire pit, and two boulder pockets for a residential pool remodel project. The contract price was $8,200.00. Payment terms were half down and the other half upon completion. Respondent paid the first half. 4. The evidence shows that Complainant was less than 50% completed when he was let go by Respondent for delays and poor workmanship. 5. Complainant alleges that he had substantially completed the subcontract work and is entitled to the second half of the contract price. As noted, the evidence does not support that claim. 6. Concerning the allegation that Respondent did not obtain required permits for the job, the evidence does not support that allegation. Complainant did not show that a search or request for permits was performed with the proper authority and that none were on file. Respondent showed that the project passed all inspections. Therefore, the allegation fails for lack of evidence. 7. Similarly, this tribunal does not have sufficient information to determine that the replacement subcontractor worked outside the scope of its license. Complainant provided evidence showing that Respondent hired a replacement subcontractor to redo and finish Complainant’s work. That subcontractor was Kanterra Stone World, which has a C-05 license described as “stone veneer and cantera products” on the ROC website. Respondent hired Kanterra to redo the coping and waterline tile for the pool, redo the fire pit, build a stone waterfall, a masonry block wall, and palm tree surround, and some other work. However, because of the nature of the C-05 license,[2] this tribunal does not have enough information to determine if that work was outside the scope of the C-05 license. Therefore, the allegation fails for lack of evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The evidence is not sufficient to show that Respondent violated the statutes in the Citation and Complaint. 3. Complainant has failed to show a violation of statutes by Respondent. 4. This matter should be dismissed.

. . .

RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Advanced Pool Concepts, Inc. in case 08- 4718 be dismissed.

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 8th day of October 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of October 2009 to:

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

By ___________________________ ----------------------- [1] See, Arizona Revised Statutes § 32-1102 and Arizona Administrative Code R4-9-104 for a description of residential contracting license classifications and scope of work. [2] It is described at A.A.C. R4-9-103 as a limited specialty license as restricted by the Registrar. The record does not show what the restrictions on the license are. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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