ALJDEC decisions subject to certification as final

2010A-308472501-ROC · Registrar of Contractors · 2011-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2011 APPEARANCES: Cathaleen Horton appeared personally. Designer Pools, Inc. was represented by its corporate officer and qualifying party, 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. Cathaleen Horton (“Complainant”) and her husband hired Respondent to construct a swimming pool at Complainant’s residence located at 4032 East Carriage Way, Gilbert, Arizona. 3. On February 14, 2008, Respondent completed construction of Complainant’s swimming pool. 4. After completion of the swimming pool, Respondent drained Complainant’s swimming pool numerous times to perform repairs. The most recent repair was performed in January 2010. 5. On April 21, 2010, Complainant filed a written Complaint with the Registrar containing the following three Complaint items related to Respondent’s construction and repairs to the swimming pool: #1. There is a huge patch at the bottom of the pool by the leaf trap that does not come close to the original plaster color. The reason that there is a patch at the bottom of the pool is due to shotcrete being stuck in the leaf trap when the pool was built. It took them close to 2 years to get the shotcrete out of the leaf trap. While working on this, they drilled a hole in the bottom of the pool, which caused a massive pool leak. Which [sic] in turn caused them to jack hammer the bottom of the pool so they could fix the leak and then they put a patch in the pool.

#2[.] Tile on damn [sic] wall still has a cracked tile.

#3[.] Reimbursement for water and chlorine- My pool had to be drained 4 times in order to get the shotcrete out of the leaf trap. When they drained the pool in May 2009, they did not want to put salt back into the pool in case they had to drain it again. The contractor told me that they would be by every week to put chlorine into the pool. The contractor only came by a hand full [sic] of times from May 2009 through December 2009. Dorothy with designer pools [sic] stated in July 2009 to me that the chlorine will be the contractors [sic] responsibility to reimburse me the cost since I have a salt pool and the contractor did not want to put salt in it. I was also told in January 2010, that I would be getting reimbursed for the water at $15.50 per refill.

6. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted]. 7. As a result of the filed Complaint, the Registrar’s assigned inspector, Randy Cason, performed a jobsite inspection on May 7, 2010, to view the Complaint items. 8. As a result of his jobsite inspection, Inspector Cason issued a Corrective Work Order directing Respondent to timely address the three Complaint items. 9. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23). 10. On February 4, 2011, Inspector Cason performed a pre-hearing jobsite inspection to determine Respondent’s compliance with the Corrective Work Order. 11. At hearing, Inspector Cason testified that Complaint item #1 remains uncorrected. The grey patch does not match the white color of the original plaster. 12. Inspector Cason further testified that Complaint item #2 has been appropriately corrected by Respondent. 13. There is no evidence that Respondent has reimbursed Complainant per Complaint item #3 and the Corrective Work Order. 14. The credible evidence of record established that Respondent failed to comply with the Corrective Work Order. 15. Respondent was responsible for the deficient workmanship caused by its subcontractors. 16. A review of the Registrar’s official electronic licensing records reveals that Respondent’s License No. 104613 was suspended on September 23, 2010, for lack of bond. The suspension of Respondent’s license occurred after the issuance of the Corrective Work Order. 17. Respondent’s corporate officer and qualifying party, Garry White, testified that Respondent is out of business. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license for lack of bond does not deprive the Registrar of jurisdiction over that license. 2. 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). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 104613 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before the effective date of the Order entered in Case No. 2010-[number redacted] shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (3), unless payment of any outstanding prior civil penalty is tendered. 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 45 days from the date of that certification.

Done this day, February 28, 2011.

/s/ Brian Brendan Tully 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