ALJDEC decisions subject to certification as final

2010A-930228-ROC · Registrar of Contractors · 2010-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2010

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife Marielena and daughter Grecia; Respondent was represented by Qualifying Party Vicente Milan.

WITNESSES: Daryl McCloskey, ROC Inspector Pablo Tafolla Marielena Tafolla Grecia Tafolla Vicente Milan

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Respondent denies all allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Respondent’s marked Exhibits R1 through R4.[1] 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 that Respondent has failed to perform in a workmanlike manner and has failed to comply with a Corrective Work Order. FINDINGS OF FACT 1. Respondent is the holder of license KA-5.223977-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to build and repair swimming pools for both commercial and residential projects. Vicente Milan is the owner and Qualifying Party of the business. 2. The parties entered into an agreement calling for Respondent to build a swimming pool and spa at Complainant’s residence.[2] The total price of the project was $38,000.00. Complainant has paid all but $500.00 of that price. 3. Respondent performed the work. Complainant filed an ROC complaint in February 2010, complaining about the condition of the plaster and cracking on the deck. 4. ROC Inspector Daryl McCloskey inspected the jobsite and ordered Respondent to make corrections. The Corrective Work Order (“CWO”) issued in February 2010, ordered Respondent to correct four areas: (1) excessive waves in the plaster; (2) separation (cracking) between the pool edge and deck; (3) heaving of the pool deck north of the pool ladder; and (4) an excessive crack in the deck on the west side of the spa. 5. Respondent performed further work on areas (2), (3), and (4), but not as to CWO item (1) because Respondent determined that the waves in the plaster were not excessive. Complainant requested a hearing. 6. At hearing, Inspector McCloskey testified about his initial inspection, the CWO items, and a pre-hearing inspection that he performed on October 25, 2010. He testified that all four CWO items were still in need of repair. He stated that the waves in the plaster were excessive in his opinion, and that Respondent has attempted to repair the other items but had not been successful. 7. In regard to CWO item (1), Respondent relies on an inspection performed by Erroll Mastin of NPT Pool Finishes, Respondent’s material supplier. Mastin wrote two letters that are in the record in which he states that he does not believe that the waves in the pool surface are excessive and outside industry standards.[3] His statement directly contradicts that of Inspector McCloskey. 8. This tribunal finds that the opinion of Inspector McCloskey is entitled to greater weight than that of Mastin. Mastin was not present at the hearing so that questions could be asked about his opinion. Also, the Inspector has no connection to the project and is unbiased, whereas Mastin has a connection as the material supplier with a business connection to Respondent. Based on the entire record, Inspector McCloskey’s opinion is given greater weight. 9. The evidence shows that CWO items (1), (2), (3), and (4) are still in need of repair/correction. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] Complainant has 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.[7] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 that prohibits poor workmanship. 3. The evidence submitted shows violations of both subsections. 4. Respondent is found to have violated Arizona contracting statutes and is subject to disciplinary action. A review of current ROC records shows that Respondent’s license is active and in good standing. 5. The appropriate sanction in this matter is to allow Respondent another opportunity to comply with the CWO by correcting the items. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty is also warranted. RECOMMENDED ORDER IT IS RECOMMENDED that license KA-5.223977-D, held by Milan Pools and Spas, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives and accepts written proof of full compliance by correction of the items in the Corrective Work Order issued in this matter. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-930228 (formerly Y10-0093) be closed. IT IS FURTHER RECOMMENDED that Respondent Milan Pools and Spas, LLC, pay a civil penalty of $250.00 to the Registrar of Contractors, pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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)(5), unless payment of any outstanding prior civil penalty is made.

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, November 9, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent submitted Exhibit R5, character reference letters, but these were not admitted because they are not relevant to the issues. [2] Exhibit R1. [3] Exhibit R3. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] There is also a citation regarding the name Respondent has operated under, but that has been sufficiently addressed by a warning letter from the ROC.

-----------------------

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