ALJDEC decisions subject to certification as final

2010A-1593126-ROC · Registrar of Contractors · 2011-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 29, 2011 APPEARANCES: Barbara Baughn appeared personally. Designer Pools, Inc. was represented by its authorized representative, Garry White. 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. Designer Pools, Inc. (“Respondent”) is the holder of License No. 104613, a Class B-5 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On September 26, 2007, Barbara Baughn (“Complainant”) entered into a written contract with Respondent for the construction of a swimming pool at Complainant’s residence in Phoenix, Arizona. 3. On July 14, 2009, Complainant filed a written Complaint with the Registrar alleging 17 complaint items. The Registrar designated the Complaint as Case No. 10-1059, but later re-designated it as Case No. 2010-1593126. 4. On July 30, 2009, the Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection to view the Complaint items. Inspector Fleetham found that the pool was not completed and recommended that the Complaint be closed. 5. Complainant subsequently filed the following amendments to her Complaint: Amendment dated September 18, 2009; Amendment dated November 30, 2009;[1] Amendment dated January 13, 2010; Amendment dated March 30, 2010; Amendment dated June 7, 2010; Amendment dated July 7, 2010; and Amendment dated August 30, 2010. Many of the allegations made in the Addenda were duplicates. Other allegations included workmanship and billing issues. 6. Inspector Fleetham did not issue a Corrective Work Order in this matter because he did not find any deficient workmanship. 7. The swimming pool was completed in early 2010. 8. The Registrar issued a Citation and Complaint in Case No. 2010-1593126 dated November 24, 2010, charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2) and (3), namely A.A.C. R4-9-108. The Citation and Complaint was subsequently amended by the Registrar to include the Amendments dated March 30, 2010, June 7, 2010, July 7, 2010, and August 30, 2010. 9. The Registrar forwarded Case No. 2010-1593126 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. On March 25, 2011, Inspector Fleetham performed a pre-hearing jobsite inspection to view the original Complaint items and Amendments items. Inspector Fleetham found no deficient workmanship by Respondent. 11. The parties’ contract specifies that Respondent would install 24 pop up heads in Complainant’s swimming pool. Respondent installed 19 pop up heads, but it did not credit Complainant for the five pop up heads not installed. 12. Any allegation contained in the Complaint and the Addenda that is not specifically addressed in the above Findings of Fact is determined either to meet minimum workmanship standards, to be a duplicate of another allegation, to be excluded from the parties’ contract, to be a billing dispute between the parties best resolved in a civil court of competent jurisdiction, or to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation. 13. A review of the Registrar’s official electronic licensing records reveals that Respondent’s contracting license has been suspended for lack of bond since September 23, 2010. 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 suspension of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for any proven statutory and/or regulatory violation in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (2) and (3), namely A.A.C. R4-9-108. The factual basis for this conclusion is Respondent’s failure to install the additional five pop up heads as specified in the parties’ contract and paid for by Complainant. 5. The evidence of record supports a recommendation of restitution for Complainant’s payment for five pop up heads that were not installed as specified in the parties’ contract. RECOMMENDED ORDER Respondent’s Class B-5 License No. 104613 shall be revoked on the effective date of the Order entered in Case No. 2010-1593126. If Respondent pays restitution in the value of the five pop up heads not installed to Complainant on or before the effective date of the Order entered in Case No. 2010-1593126, then the above revocation of Respondent’s contracting license shall not take place, but instead the Citation and Complaint in this matter shall be closed. 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, April 18, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Both Amendment items were duplicates of prior allegations.

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