ALJDEC decisions subject to certification as final

08F-Y0218-ROC · Registrar of Contractors · 2010-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2010 APPEARANCES: Debbie Bomhower appeared personally. Avalon Pools, L.L.C. was represented by its member and qualifying party, David Morgan. 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. Avalon Pools, L.L.C. (“Respondent”) is the holder of License No. 232654, a Class KA-05 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On September 12, 2007, Debbie Bomhower (“Complainant”) entered into a written contract with Respondent for the construction of a swimming pool and planters at Complainant’s residence located at 10522 S. El Camino Del Diablo, Yuma, Arizona. 3. On March 18, 2008, Complainant filed a written Complaint with the Registrar alleging the following deficient workmanship by Respondent: Jacuzzi has 5 cracks Shell is cracked Decking has several cracks and steps Top of Jacuzzi is not level planter is missing Pieces of concrete missing in several places in pool area Waterfall is leaking Possible shell is not poured to depth or code of 6 inches

stucco pillars were damaged w/equipment I paid 400.00 for repair window was broken from large pole during concrete I paid John’s glass 309.00

4. On March 19, 2008, Complainant filed an Addendum to her Complaint, which listed the following Complaint items: Jacuzzi has 5 cracks Shell is cracked Decking has several cracks and steps Top of Jacuzzi is not level plus has crack planter missing Pieces of concrete missing in several places in pool area and Jacuzzi Waterfall is leaking Possible shell is not poured to depth or code of 6 inches Cracks in decking near planter that was jack hammered in Tile in Jacuzzi has been cut for repairs stucco pillars were damaged w/equipment I paid 400.00 for repair window was broken from large pole doing concrete I paid Johns Glass 312.51 Seal around pool and decking is bad needs to be resealed.

5. The Registrar designated Complainant’s Complaint as Case No. Y08-0218. 6. The Registrar issued a Citation and Complaint in Case No. Y08-0218 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 7. The Registrar forwarded Case No. Y08-0218 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. In response to the filed Complaint, the Registrar’s assigned inspector, Daryl McCloskey, performed an initial jobsite inspection to view the Complaint items and Addendum items on March 24, 2008. That inspection resulting in Inspector McCloskey issuing a Corrective Work Order dated March 26, 2008, which provided for the following: THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS:

1) The cracks in the spa that cause the shell to fail. 2) The cracked pool deck by the skimmer. 3) The lifting of the pool deck on the east side of the pool. 4) The voids in the spa shell. 5) Replace the plaster in the spa.

THE FOLLOWING ITEMS REQUIRE NO ACTION BY THE CONTRACTOR AT THIS TIME:

1) The spa deck that slopes out from the spa. 2) The missing planter on the west side.

9. By correspondence dated May 28, 2009 sent to the Registrar, Complainant amended her Complaint to include plaster coming off her swimming pool. 10. Inspector McCloskey performed a pre-hearing jobsite inspection to view the Complaint items, Addendum items, and amended Complaint item. 11. At the hearing, Inspector McCloskey testified that Respondent had replastered the spa. However, Inspector McCloskey observed a crack in the spa’s plaster during his prehearing inspection. 12. Inspector McCloskey observed rocks leaning toward the swimming pool. He also observed mottling in the pool and voids. 13. Respondent repaired the cracked pool deck by the skimmer. However, those repairs damaged the skimmer housing. 14. Inspector McCloskey opined that Respondent’s scope of work is not within workmanship standards. 15. Respondent did not fully comply with the Registrar’s Corrective Work Order. 16. The evidence of record did not credibly establish that Complainant caused damage to the pool, spa, and appurtenants due to lack of homeowner maintenance. 17. Respondent’s failure to bring its workmanship within workmanship standards is a wrongful act resulting in substantial injury to Complainant. 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 violated the provisions of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s Class KA-05 contracting license shall be suspended on the effective date of the Order entered in Case No. Y08-0218 until Respondent submits written proof to the Registrar that its entire scope of work on Complainant’s project, including remedial work, meets workmanship standards, and the Registrar approves such proof. If, on or before the effective date of the Order entered in Case No. Y08-0218, Respondent submits proof to the Registrar that its entire scope of work on Complainant’s project, including remedial work, meets workmanship standards, and the Registrar accepts such proof of compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class KA-05 contracting license shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. Y08-0218 or the date the Registrar approves Respondent’s proof of compliance with the above-provided directive, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. Y08-0218 shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, February 8, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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