ALJDEC decisions subject to certification as final

09F-0258-ROC · Registrar of Contractors · 2009-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2009. APPEARANCES: Dianne Rogone appeared personally. Dolphin Pool Construction Company, Inc., doing business as Dolphin Pools, was represented by its qualifying party, Steve Tillotson. 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. Dolphin Pool Construction Company, Inc., doing business as Dolphin Pools (“Respondent”) is the holder of License No. 094365, a Class B-05 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Jason Rogone and Dianne Rogone (“Complainants”) filed a written Complaint with the Registrar concerning Respondent’s workmanship on their swimming pool. The Registrar designated their Complaint as Case No. 09-0258. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Jim Dimond, performed a jobsite inspection to view the alleged deficiencies in Respondent’s workmanship. That inspection resulted in the issuance of a Corrective Work Order dated August 14, 2008, which required Respondent to timely perform corrective work to specified areas of deficient workmanship. The terms of the Corrective Work Order are incorporated herein by reference. 4. The Registrar issued a Citation and Complaint in Case No. 09-0258 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23), and (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. 09-0258 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. At the hearing, there were two items still at issue: cracking grout in a control joint on the pool deck and a stain in the swimming pool. 7. The evidence of record supports a finding that concrete will crack by design at control joints. 8. Respondent installed tile over Complainants’ pool deck. After the installation of one tile over a control joint, cracking developed in the concrete and traveled through the over-laid tile. Respondent’s solution was to cut the tile at the control joint so that there were two pieces of tile flanking the control joint, with grout separating the tile over the control joint. However, that solution resulted in cracking in the new grout. 9. Inspector Dimond testified that there are methods to avoid the surface cracking over the control joint, but those methods were not employed by Respondent. 10. There is insufficient evidence that the cracking at the control joint results from trapped water in the pool area, which is enclosed by a CMU wall, as alleged by Complainants. 11. The original specifications called for the installation of 21 “pop-up jets” for the pool’s in-floor pool cleaning system. Respondent installed 23 jets per engineering performed by the system’s manufacturer. The jets were installed in a proper manner. 12. Inspector Dimond credibly testified that the stain in the deep end of the swimming pool is hardly noticeable. 13. There is insufficient evidence that the “pop-up jets” have caused any staining of the swimming pool. 14. Respondent complied with the Registrar’s written directive, except for items no. 3 and 7 pertaining to cracking grout above the deck’s control joint. However, additional remedial work is necessary at the control joint described in the above Findings of Fact. 15. There is insufficient evidence that Respondent’s failure to resolve the cracking at the above-described control joint resulted in substantial injury to the Complainants. 16. Any allegation contained in Complainants’ Complaint that is not addressed in the above Findings of Fact is found to either meet minimum workmanship standards or to lack sufficient evidence of record to support a finding of a violation. 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), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. There is insufficient evidence that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. Although the original specifications called for 21 jets, subsequent engineering by the product manufacturer determined that 23 jets were needed. Respondent installed those jets at the appropriate locations. 4. There is insufficient evidence that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Complainants failed to sustain their burden of showing that they have been substantially injured by Respondent. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (23). Additional repairs are required, pursuant to items no. 3 and 7 of the Corrective Work Order. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108. Respondent still needs to repair its workmanship at the above-described control joint in the deck. RECOMMENDED ORDER Respondent’s License No. 094365 shall be suspended on the effective date of the Order entered in Case No. 09-0258 until the Registrar receives written proof, and accepts such proof, that Respondent has successfully performed remedial repairs to the control joint and the pool deck tiles. If Respondent submits written proof that it has successfully repaired the control joint and deck tile, and the Registrar accepts such proof, on or before the effective date of the Order entered in Case No. 09-0258, then the above-provided license suspension shall not take place, and the Citation and Complaint in Case No. 09-0258 shall be closed. In addition to the above-provided license suspension, if any, Respondent shall pay the sum of $100.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure of 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. 09-0258 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, July 13, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

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

By ___________________________

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