ALJDEC decisions subject to certification as final

2010A-20550554-ROC · Registrar of Contractors · 2010-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2010 APPEARANCES: Franklyn and Wanda Amado appeared personally.[1] Hamner Enterprises, Inc., doing business as Northwest Pool Contracting, was represented by its authorized representative, Steve Hamner. 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. Hamner Enterprises, Inc., doing business as Northwest Pool Contracting (“Respondent”), is the holder of License No. 129679, a Class B-6 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent submitted an Invoice dated May 3, 2009, to Franklyn and Wanda Amado (“Complainants”) for a proposed swimming pool project at Complainants’ residence located at 10548 W. Via Montoya Drive, Peoria, Arizona. 3. The parties entered into a written Contract dated May 12, 2009, for the construction of Complainants’ swimming pool. The parties’ Contract contained a description of the scope of work to be performed by Respondent. 4. The parties’ Contract failed to disclose Complainants’ statutory rights as required. 5. Respondent submitted a second Invoice dated June 13, 2009, to Complainants for additional work on the subject project. 6. On December 3, 2009, Complainants filed a written Complaint with the Registrar alleging numerous items of deficient workmanship by Respondent and seeking, among other things, restitution in the amount of $1,440.00. 7. The Registrar initially designed Complainants’ Complaint as Case No. 10-2055, but subsequently re-designated the Complaint as Case No. 2010- 20550554. 8. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (9), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. §§ 32-1158(B) (5) and (9), and 32-1158.01(A) (1), (3), and (4). 9. The Registrar forwarded Complainants’ Complaint to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. At hearing, the Registrar’s assigned inspector, Eric Ulinger, testified that Respondent failed to properly caulk around Complainants’ swimming pool, as alleged in Complaint item number 2. 11. Inspector Ulinger further noted that the water level for Complainants’ swimming pool was below the caulking line for the pool. The inspector’s observation contradicts Complainants’ assertion that the lack of proper caulking resulted in water infiltration beyond the caulking, resulting in heaving of an adjacent kool deck. Complainants failed to present probative and substantial evidence to support their contention. 12. Inspector Ulinger did not issue a Corrective Work Order directing Respondent to timely perform any required remedial repairs to Complainants’ swimming pool. 13. As to the remaining Complaint items, it is determined that either those items meet minimum workmanship standards and/or Complainants failed to present credible evidence at hearing establishing that those items constitute a statutory and/or regulatory violation by Respondent. 14. Respondent is determined to be responsible for removing the existing caulking in Complainants’ pool and reapplying an appropriate caulk product of its choosing. 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. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. §§ 32-1158(B) (9) and 32-1158.01(A) (1), (3), and (4), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. §§ 32-1154(A) (9) and 32-1158(B) (5), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 5. Based upon the evidence of record, Complainants failed to establish an entitlement to restitution in this matter. RECOMMENDED ORDER Respondent’s License No. 129679 shall be suspended on the effective date of the Order entered in Case No. 2010-20550554 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has removed and reapplied caulking in Complainants’ swimming pool in a workmanlike manner and that Respondent has become fully compliant with the requirements of A.R.S. §§ 32-1158(B) (9) and 32-1158.01(A) (1), (3), and (4). If Respondent removes and reapplies caulking in Complainants’ swimming pool in a workmanlike manner and Respondent has become fully compliant with the requirements of A.R.S. §§ 32-1158(B) (9) and 32- 1158.01(A) (1), (3), and (4) on or before the effective date of the Order entered in Case No. 2010-20550554, and the Registrar approves proof of such compliance by Respondent, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010-20550554 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, July 27, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Franklyn Amado’s first name has been corrected to reflect the spelling of his name in the Complaint.

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