ALJDEC decisions subject to certification as final

2010A-26805584-ROC · Registrar of Contractors · 2010-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2010 APPEARANCES: Daryl and Jennifer Barkley appeared personally. Paddock Pool Construction Co. was represented by its authorized representative, Mark Bowers. 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. Paddock Pool Construction Co. (“Respondent”) is the holder of License No. 20286, a Class B-5 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 8, 2010, Jennifer and Daryl Barkley (“Complainants’) filed a written Complaint with the Registrar alleging 10 Complaint items against Respondent, the terms of which are incorporated herein by reference. 3. The Registrar initially designated Complainants’ Complaint as Case No. 10-2680, but later re-designated the Complaint as Case No. 2010- 26805584. 4. The Registrar issued a Citation and Complaint in Case No. 2010- 26805584 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. 2010-26805584 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On March 16, 2007, Complainants and Respondent entered into a written contract for the installation of a swimming pool by Respondent at Complainants’ residence located at 2684 W. Lowell Avenue, Gilbert, Arizona. 7. Complainants purchased swimming pool glass tiles from Noble Tile Supply, a tile supplier. Respondent installed the glass tiles purchased by Complainants. 8. Respondent completed Complainants’ swimming pool on July 16, 2007. 9. Respondent performed an acid wash of Complainants’ pool on February 23, 2008. Mr. Barkley supervised the acid wash process. 10. In response to the filed Complaint, the Registrar’s assigned inspector, Beau Cruz, performed a jobsite inspection to view the Complaint items in Complainants’ pool. 11. Inspector Cruz did not issue a Corrective Work Order in this matter. Inspector Cruz opined that Complainants’ Complaint was filed beyond two years from the date of completion of the Complaint items. Therefore, such Complainant items are no longer within the jurisdiction of the Registrar. 12. Inspector Cruz further opined that Complainants failed to establish that the acid washing of Complainants’ swimming pool caused any damage to the pool. 13. Complainants are found not to have filed a warranty claim with Respondent for the Complaint items prior to filing their Complaint with the Registrar.[1] 14. At hearing, the parties submitted notarized written witness statements from the following individuals who did not appear and testify in person: Alan Stillwell, Crystal Shane, Debbie Moles, Patrick Rogers, and Aubrey Kendall. Those written statements are given little weight since the opposing party did not have the opportunity to cross-examine those individuals.[2] 15. There was credible evidence presented at the hearing that Complainants’ swimming pool had too high calcium hardness resulting in calcium buildup. That condition is a homeowners’ maintenance issue and not a warranty issue. 16. Complainants’ Complaint item that “[t]he interior glass tile of the pool was installed very poorly, with unmatched grout lines, chipped tiles, and overall poor installation” is determined to have been raised beyond the Registrar’s 2-year jurisdiction. The installation of the tile was completed by Respondent on July 16, 2007. Complainants’ Complaint was filed with the Registrar on February 4, 2010. Respondent did not perform any work on the Complaint item after the completion of the tile installation. 17. Complainants’ Complaint item that “[t]he tile’s [sic] white mesh backing has expanded significantly to where a thick, rubbery, white substance is seeping from the grout lines” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 18. Complainants’ Complaint item that “[t]he expansion of such backing is causing the ¾” tiles to lift and expose sharp corners, causing injury” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 19. Complainants’ Complaint item that “[t]his expansion is also causing the tiles to pop out” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 20. Complainants’ Complaint item that “[t]he grout color is significantly faded in several areas, leaving grayish-white areas in a black-grouted pool” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 21. Complainants’ Complaint item that “[t]he grout color definition between each days’ [sic] installation is very noticeable, including the repaired areas” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 22. Complainants’ Complaint item that “[i]n some areas, the grout contains a very small, hard, white rock in the cement mix” is determined to have been raised by Complainants in their Complaint beyond the 2-year jurisdiction of the Registrar. 23. Respondent’s acid wash of Complainants’ swimming pool did not toll the time for Complainants to raise the above-described Complaint items deemed to have been raised by Complainants beyond the 2-year jurisdiction of the Registrar. Respondent is responsible for only the scope of work performed during the acid wash for two years from the date of that work. 24. Any Complaint item not addressed above or additional complaints of workmanship raised by Complainants for the first time at hearing are determined to be either beyond the scope of the Registrar’s jurisdiction or not contained in Complainants’ Complaint. CONCLUSIONS OF LAW 1. 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). 2. Pursuant to A.R.S. § 32-1155(A), the Registrar has jurisdiction over a licensee “within two years prior to the date of filing the complaint, of an act that is cause for suspension or revocation of a license.” The statute further provides that “[t]he two year period prescribed by this subsection shall commence…on completion of the specific project.” Based upon the credible evidence of record, Complainants filed their Complaint in this matter beyond the Registrar’s 2-year jurisdiction. Therefore, the Registrar lacks jurisdiction in this matter. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-26805584 shall be dismissed 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, August 31, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Barkley was an employee of Respondent at the time Complainants contracted with Respondent up until his termination on August 3, 2009. Mr. Barkley’s sister, Debbie Moles, worked as Respondent’s Warranty Manager during the time of the parties’ contract up until her termination on August 4, 2009. Complainants contend that they did not file a warranty claim with Respondent, or file a complaint with the Registrar until February 8, 2010, because they were concerned about Mr. Barkley’s employment with Respondent and a subsequent labor dispute after his termination from Respondent’s employ. [2] Pursuant to A.R.S. § 32-1092.07(F) (4), the parties could have made application to the tribunal for permission to take the depositions of their witnesses who were unavailable to attend the hearing. Depositions would have permitted the opposing party to cross-examine the witnesses who were unavailable to give live testimony.

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