ALJDEC decisions subject to certification as final

2007A-1152624-ROC · Registrar of Contractors · 2011-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 5, 2011 APPEARANCES: Shannon Jeffrey appeared personally. Whitewater Pools and Spas, Inc. did not appear. 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. Pursuant to the Order Reopening Complaint and Setting Hearing issued by the Registrar of Contractors (“Registrar”) in Case No. 2007- 1152624, formerly S07-0115 (“Order”), this matter came on for hearing before the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 2. The Registrar’s Order advised the parties of the time, date, and location of the formal hearing. The Order was sent to the parties at their addresses of record with the Registrar. 3. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 4. Respondent is the holder of License No. 144837, a Class B-5 contracting license issued by the Registrar. 5. Shannon Jeffrey (“Complainant”) hired Respondent to construct a swimming pool and spa at her residence located at 408 Sunrise Circle, Sierra Vista, Arizona. 6. On January 7, 2007, Complainant filed a written Complaint with the Registrar against Respondent listing seven complaint items. 7. According to Complainant’s Complaint, Respondent last performed work on the subject project in June of 2006. 8. In response to the filed Complaint, the Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2), (7)[1], (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 9. On April 24, 2007, Respondent filed a timely Answer to the Citation and Complaint with the Registrar. Respondent advised the Registrar that the parties had reached a settlement agreement. Respondent also included a copy of the parties’ settlement agreement dated April 10, 2007. 10. The parties’ settlement agreement reads as follows: Whitewater agrees to refund $830.00 to Shannon Jeffrey for repairs performed on her pool and Whitewater agrees to ship to Shannon up to 3 lbs. of deck topping material & bonding liquid for said material & the outstanding invoice with Whitewater will be voided.

Shannon Jeffrey agrees to cancel complaint with the Arizona Registrar of Contractors immediately & return pool vacuum which was picked up from Whitewater office.

11. The parties’ settlement agreement also provided that payment of the $830.00 would be made when Complainant returned the pool vacuum to Respondent. 12. Based upon the parties’ settlement agreement, on May 16, 2007, the Registrar issued an Order of Closing in the case. The Order of Closing advised the parties that the case could be reopened “upon an allegation of failure to comply with the terms of the settlement.” 13. Complainant later requested that the case be reopened due to Respondent’s failure to comply with the settlement agreement. 14. At hearing, Complainant testified that she did return the pool vacuum to Respondent, but that Respondent failed to comply with the settlement. 15. The evidence of record established that Respondent’s workmanship failed to meet workmanship standards. In the settlement agreement, Respondent agreed to pay Complainant for remedial work to Respondent’s workmanship that was performed by others. 16. Respondent deviated from plans and/or specifications by not installing volleyball sleeves. 17. At hearing, Complainant testified that the size of her pool does not comply with plans and local zoning requirements. However, Complainant raised this issue for the first time at the hearing. This issue is determined to be outside the scope of her original Complaint and the two-year jurisdiction of the Registrar. 18. There is evidence that the Registrar determined that Respondent had contracted using the name “White Water Pools & Spa” instead of the name appearing on its contracting license. 19. The evidence of record established that Respondent failed to properly list its contracting license number on a facsimile sent to the Registrar. 20. Respondent’s deviation from plans and/or specification, its failure to meet workmanship standards, and its failure to comply with the parties’ settlement agreement are wrongful acts resulting in Complainant being substantially injured. 21. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 144837 was revoked on March 27, 2009. Those records reflect payouts from the Residential Contractors’ Recovery Fund in the total amount of $44,244.88 for damages caused by Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s contracting license does not deprive the Registrar of the authority to impose additional discipline against that license for statutory and regulatory violations in this matter. 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), former (7), (15), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER Respondent’s License No. 144837 shall be revoked in Case No. 2007- 1152624 on the effective date of the Order entered 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, July 20, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At the time that the Citation and Complaint was issued, A.R.S. § 32- 1154(A) (7) included the element of “wrongful act,” that is not included in the current statute.

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