ALJDEC decisions subject to certification as final

2010A-308476393-ROC · Registrar of Contractors · 2011-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2011

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by its President and Qualifying Party David Hancock.

WITNESSES: Edward Yoh Judy Yoh David Hancock

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action claiming poor workmanship with regard to work Respondent performed on their pool. The Registrar of Contractors has issued a Citation and Complaint that cites provisions alleging poor workmanship and that Respondent performed work while on a suspended or inactive license. Respondent denies the workmanship allegation but admits the allegation of contracting while on a suspended license. Complainants request restitution for repairing damage to the pool surfaced. This tribunal entered the complaint file received from the Registrar of Contractors into the record, including photographs of the pool. 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 violation of the law and recommending revocation of its license if Respondent does not pay restitution to Complainants. FINDINGS OF FACT 1. Respondent is the holder of license K-6.167094-D, a dual residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to service and make repair to residential and commercial pools. The license was suspended for lack of renewal from November 1, 2009 to October 31, 2010 and expired on November 1, 2010. 2. In August 2010, Respondent entered into an agreement with Complainants to install a new filter for Complainants’ pool and to remove algae from the pool water. At the time of the agreement, Respondent’s license had been suspended for ten months. 3. The evidence clearly supports a finding that Respondent contracted while its license was suspended. 4. Complainants claim that Respondent’s attempt to clean the pool water was ineffective and harmed the pool surface. They submitted testimony, photographs, and documentation supporting that position. The photographs show the pool before Respondent worked on it and after. Based on the photographs and Complainants’ testimony, the evidence that the damage to the pool surface was not present before Respondent worked on the pool is persuasive. 5. Complainants also submitted a bid from True Blue Pools, Inc., a licensed and active Arizona swimming pool contractor, that shows it will cost Complainants $3,817.00 to correct the pool surface.[1] 6. David Hancock, Respondent’s Qualifying Party, testified that the pool surface was damaged before Respondent worked on the pool and that Respondent did not cause the damage to the pool surface. However, there is no corroborating evidence for Respondent’s position that the pool surface was already damaged. Respondent provided no documentation verifying that the pool surface was damaged prior to Respondent’s work on the pool. Respondent has not overcome the credible evidence presented by Complainants that shows that the damaged to the pool surface appeared after Respondent worked on the pool. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainants have met that burden. 2. The evidence shows that Respondent has violated Arizona Revised Statutes § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship) and (A)(18) (prohibits contracting with a suspended or inactive license) as alleged in the Citation and Complaint. 3. Respondent should not have entered into the contract with Complainants because its license was suspended at the time. Because Respondent did so, Respondent is strictly responsible for the outcome. The evidence submitted persuades this tribunal that Respondent either caused the damage to the pool surface or made worse any minor damage that might have been there before Respondent worked on it.[5] 4. Respondent’s license is expired. Pursuant to A.R.S. § 32- 1154(C), the expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to discipline the license. 5. Based on the findings and conclusions above, Respondent’s license should be revoked unless Respondent compensates Complainants for their damages by paying restitution in the amount of $3,817.00. If Respondent does so, the complaint should be closed.

RECOMMENDED ORDER IT IS RECOMMENDED that license K-6.167094-D held by Respondent Gilligan’s Pools, Inc. be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $3,817.00, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license revocation shall not take place and case 2010-[number redacted] 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, June 27, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This breaks out to $3,054.67 for plastering and $762.33 for tile replacement ($720.00 plus tax at 5.88%). [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] This conclusion is based on the photographs and the lack of documentation showing that there was damage to the pool before Respondent performed its work, which Respondent could have easily created at the time of the contract.

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