ALJDEC decisions subject to certification as final

2010A-308472164-ROC · Registrar of Contractors · 2011-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2011

APPEARANCES: Ken Rennie appeared on behalf of Complainants; Respondent was represented by its corporate President and Qualifying Party Martin T. Herrera III.

WITNESSES: Daryl McCloskey, ROC Inspector Ken Rennie Martin Herrera

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action claiming poor workmanship and failure to comply with a Corrective Work Order issued by the Registrar of Contractors. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license B-5.107426-R, a general residential swimming pool contractor license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair swimming pools for residential properties. Martin Herrera is Respondent’s Qualifying Party. 2. Complainants filed a complaint with the ROC against Respondent on April 6, 2010. The subject of the complaint was a pool and spa (“pool/spa”) that Respondent built for Complainants at Complainants’ home. The main contention was that the pool/spa slowly leaked water. 3. ROC Inspector Daryl McCloskey inspected the jobsite on June 6, 2010, and ordered Respondent to correct the loss of water from the pool, a crack at an entryway, and landscaping that was disturbed by Respondent while working on the pool. The evidence shows that Respondent corrected the minor items and diligently pursued finding the cause of the water leak, but that it was difficult and took some time. Eventually, Respondent found the leak and corrected it. When Inspector McCloskey inspected the site on March 8, 2011, the day before the hearing, he found that the items had been corrected and the parties were in agreement that no further work was needed. Thus, the pool/spa meets workmanship standards. Complainant Ken Rennie (hereinafter “Complainant”) requested a hearing thinking that he could get reimbursed for expenses that he incurred that are in the nature of contract or tort damages (i.e., loss of use of pool, higher water and electricity bills, etc.). At the start of the hearing, the Administrative Law Judge informed him that the type of damages he sought were not an available remedy from the ROC. Complainant acknowledged that information and decided that he wanted to go forward with the hearing on the issue of whether Respondent complied with the CWO in a timely manner. 5. The Administrative Law Judge then took testimony from Inspector McCloskey, Complainant, and Martin Herrera. Based on the testimony presented, Respondent went beyond the 15-day deadline in the CWO, but was diligent in pursuing correction of the CWO items as noted above. 6. Although Respondent did not meet the 15-day deadline imposed by the CWO, the difficulty of finding the leak excuses that failure. Martin Herrera testified as to the various methods he used to try to find the source of the leak. Eventually he did find the leak, and corrected the problem. The evidence presented at hearing does not show that Respondent failed to use best efforts or practices in doing so. The failure to find the leak within the 15 days was not due to lack of diligence. Therefore, the evidence does not support a finding that Respondent failed to timely comply with the CWO. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23) and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. Subsection (A)(23) requires contractors to comply with CWOs. 3. The evidence does not show that Respondent failed to meet minimum workmanship standards. Respondent took responsibility for and corrected the work it had performed. Furthermore, Respondent’s efforts to repair the problems and ultimate successful repair constitute compliance with the CWO. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Blue Desert Pools and Spas, Inc. be dismissed.

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, March 23, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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