ALJDEC decisions subject to certification as final

2008A-3123646-ROC · Registrar of Contractors · 2013-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 19, 2013

APPEARANCES: Complainant appeared on his own behalf; Respondent appeared and was represented by attorney Edward Britt, Esq.

WITNESSES: None

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter is a compliance hearing to determine whether Respondent has complied with an Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Order required Respondent to perform corrective work for a residential pool built by Respondent. Complainant alleges that Respondent did not complete the work ordered. Respondent denies that allegation and claims that that the ordered corrective work has been completed. The Administrative Law Judge did not take testimony for this matter due to the fact that there were no relevant factual disputes and due to concessions made by Complainant at the hearing. Based on those concessions, described below, the Administrative Law Judge makes the following findings, conclusion, and recommended order finding compliance. After Complainant filed a complaint about a pool that was being built for him by Respondent, the Registrar issued a Corrective Work Order (“CWO”) on September 23, 2008, that ordered Respondent to do the following corrective work: “The pool must be engineered for the location where it is built and must be constructed to the engineering for that location.” The complaint involved structural issues with the pool and the gunite stage of the pool. After an evidentiary hearing, the Registrar’s Order in this matter, issued April 20, 2009, adopted an Administrative Law Judge Decision that required Respondent to “compl[y] with the Registrar’s Corrective Work Order and address[ ] the concerns raised by Dr. Sublette [Complainant’s expert] in his initial report and his Addendum. . . .” After a lengthy appeal process that did not overturn the Registrar’s Order, Respondent requested a compliance hearing because he believes that he has complied with the Order, but Complainant does not agree. The ROC set this matter for compliance hearing to determine whether or not Respondent has complied with the April 20, 2009, Order. At the start of the hearing, during the opening statement portion of the hearing, Complainant stated that Respondent has built the pool in accordance with proper engineering and Dr. Sublette’s recommendations. He denies compliance with the CWO because Respondent did not complete the construction of the pool after the gunite stage due to what the Administrative Law Judge understands is a contract dispute. Complainant had the pool finished by others. Complainant claims that Respondent is not in compliance because he did not completely finish the pool. He interprets the CWO as an order to finish the construction of the entire pool and not just a portion of it. After the opening portion of the hearing on November 19, 2013, the Administrative Law Judge took some time off the record to consider the case in light of Complainant’s concession. The Administrative Law Judge hereby concludes, based on Complainant’s statement that the pool has been built by Respondent with the proper engineering and that Respondent finished the gunite stage of the pool, that Respondent has complied with the Order. The CWO and Order did not require that Respondent finish completion of the pool as a matter of workmanship, but only that the pool be built according to the structural requirements noted by Dr. Sublette’s engineering report, which has been achieved by Respondent. Therefore, Respondent is in compliance. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent Rex Alan Wolterman dba Mohave County Pools and Spas be found in compliance with the Registrar’s April 20, 2009, Order. Any further action in this matter is governed by the original Administrative Law Judge Decision as adopted by the April 20, 2009, Order.

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 the date of that certification.

Done this day, December 9, 2013.

/s/ Eric A. Bryant 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