ALJDEC decisions subject to certification as final

08F-4922-ROC · Registrar of Contractors · 2009-12-21

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 30, 2009

APPEARANCES: Complainant appeared and testified on her own behalf; Respondent was represented by its President and Qualifying Party Jim Moss.

WITNESSES: For Complainant: Jim Dimond, ROC Inspector Sandra E. Crosby

For Respondent: Don Hibbard, D and R Construction Jim Moss

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent for problems concerning work on her pool and deck. Respondent denies any workmanship issues and failure to comply. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with photographs provided at the hearing.[1] The parties presented evidence and testimony at the hearing from the witnesses noted above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violations. FINDINGS OF FACT 1. Respondent is the holder of a class B-05 general residential swimming pool contractor license (No. 091104) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform construction and repair of swimming pools and spas for residential property.[2] Respondent’s Qualifying Party is Jim Moss. 2. In 2006, Respondent completed a pool and pool deck on Complainant’s property. In June 2008, Complainant filed a complaint against Respondent regarding various items concerning the workmanship by Respondent. An inspection was held and in October 2008, ROC Inspector Jim Dimond issued a Corrective Work Order (“CWO”) that ordered Respondent to correct chips in the pool deck (item 1). Other items inspected by Inspector Dimond did not need correction. 3. At hearing, Complainant stated that the pool deck correction had not been completed as ordered and that corrections made by Respondent failed as to the pool tile (item 2) and a grade cover (item 6). Complainant also asserted that the water line to the outdoor barbecue (item 10) was not proper. These were the only items addressed at the hearing. 4. With regard to the chips in the pool deck, Inspector Dimond testified that the chips could have been caused by excessive water and movement of patio furniture or large potted plants on the deck. From the photographs put in evidence, the chips are of the type and in locations such that it is probable that those actions are the likely cause of the chipping. Complainant has failed to prove that Respondent is the cause of the current pool deck chipping. 5. Complainant has also failed to show that Respondent is responsible for the current pool tile that is loose. Inspector Dimond verified that there is currently loose tile, observed at his pre-hearing inspection. The evidence shows that Respondent performed corrective work on pool tile before the initial jobsite inspection, but the evidence is insufficient to show whether that corrective work has failed or the tile that has come loose is old tile from the original build, which occurred almost four years ago and is beyond the ROC’s two-year authority. 6. The evidence provided concerning the grade cover does not show any visible rust. That item was corrected by Respondent prior to the jobsite inspection and meets industry standards. 7. Finally, there was no persuasive evidence presented showing that the water line to the barbecue does not meet code or industry standards. 8. Complainant has failed to show that Respondent must do any further corrective work. 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 Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(7) prohibits wrongful acts that substantially harm another. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence submitted does not show a violation of those provisions. Respondent has performed adequate corrective work as ordered in the CWO. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Hop Cassidy Pools, Inc. in case 08-4922 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 21st day of December 2009.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The photographs are marked as follows: Respondent’s Exhibit A; Complainant’s Exhibits 3, 7, 8, 9, 10, 11, 12, 16, 17, 18, 20, 21, 22, 23, 27, 28, 29, 30, 31, 32, 34, 35, 36, 41. [2] See, Arizona Revised Statutes (A.R.S.) § 32-1102 and Arizona Administrative Code (A.A.C.) R4-9-103 for a description of residential license classifications. [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] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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