ALJDEC

98F-2638-ROC · Registrar of Contractors · 1998-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 16, 1998, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Attorney John W. Blischak represented the Complainant. Attorney Roger C. Decker represented the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Steven and Lorrie Shook (the “Complainant”) are the owners of a home (the “Home”) located at 9590 East Kalil, Scottsdale, Arizona.

2. Hawaiian Pools, Inc. (the “Respondent”) is a general swimming pool contractor. Steven Ripley is the Respondent’s President and Qualifying Party.

3. On or about June 10, 1997, the Complainant and the Respondent entered into a written contract for the Respondent to build a pool (the “Pool”) at the Home. The Pool included a lagoon pool, lazy river, fish pond, a spa, a swim up bar, a water slide, a swim thru grotto and several waterfalls and slides. The price on this contract was $114,000.00. The total price for the Pool ultimately was $138,954.00 after several changes were made to the Pool.

4. On or about April 16, 1998, the Complainant filed a Complaint with the Registrar of Contractors (the “ROC”) alleging seven problems with the Pool. On or about April 24, 1998, ROC Inspector Marty Di Antonio scheduled a jobsite inspection of the Pool for June 16, 1998.

5. On June 16, 1998, Inspector Di Antonio inspected the Pool. On or about June 19, 1998, Inspector Di Antonio issued a Corrective Work Order (the “CWO”) requiring that the Respondent correct the following items:

A. Plaster cracks in the Pool; B. Uneven water flow at water falls - pressure of water flow.

See CWO, dated June 19, 1998.

6. On or about July 7, 1998, the Complainant advised the ROC that the Respondent had not complied with the CWO. In September of 1998, the ROC issued a Citation and Complaint against the Respondent alleging violations of A.R.S. §32-1154(A). A hearing was scheduled in this matter for December 15, 1998.

7. Inspector Di Antonio testified that he re-inspected the Pool on December 11, 1998. Inspector Di Antonio testified that he found that there were still some visible hairline cracks in the shallow end of the Pool. Inspector Di Antonio testified that it was not clear to him if these were the same hairline cracks that were present at the June 16, 1998 inspection. On cross-examination, Inspector Di Antonio conceded that hairline cracks are commonly due to the normal shrinkage or flexing of the supporting structure. See ROC’s Minimum Workmanship Standards for Licensed Contractors, page 38, Item 2. Inspector Di Antonio further testified that a contractor has the responsibility to repair any hairline cracks in the pool’s plaster within twelve months after the completion of the Pool. Inspector Di Antonio testified that these guidelines do not apply if the cracks are excessive. However, Inspector Di Antonio testified that the Pool’s hairline cracks are not excessive.

8. The parties stipulated that the Respondent has already agreed to repair any hairline cracks in the shallow or west end of the Pool. The record is not entirely clear on this issue but apparently the Respondent may have previously been denied access to the Pool to repair the hairline cracks. Counsel for the Complainant stated that the Respondent will now have access to the Pool.

9. The undersigned Administrative Law Judge finds that the hairline cracks in the shallow or west end of the Pool are not excessive. The undersigned Administrative Law Judge further finds that these hairline cracks are commonly due to the normal shrinkage and flexing of the supporting structure. The undersigned Administrative Law Judge also finds that the Respondent has been ready, willing and able to repair these cracks as required under the ROC’s Minimum Workmanship Standards for Licensed Contractors.

10. Inspector Di Antonio testified that he also re-inspected the pressure in the water flow at the waterfalls. Inspector Di Antonio testified that the pressure can now be adjusted up and down to achieve the desired water pressure. Inspector Di Antonio testified that he is now satisfied that the Respondent has properly corrected this item in the CWO.

11. At the conclusion of the Complainant’s presentation of its case, the Respondent motioned for a directed verdict because the Complainant failed to present a prima facie case showing that the Respondent is in violation of A.R.S. §32-1154(A). The Complainant argued that the Complainant has presented a prima facie case showing that the Respondent is in violation of A.R.S. §32-1154(A). The undersigned Administrative Law Judge granted the Respondent’s motion.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #9 & 10. The undersigned Administrative Law Judge concludes that the Respondent has performed in a professional and workmanlike manner.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #9 & 10. The undersigned Administrative Law Judge finds no wrongful or fraudulent act that has caused substantial injury to the Complainant.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #8 & 9.

5. The undersigned Administrative Law Judge concludes that the Complainant has failed to present a prima facie case showing that the Respondent is in violation of A.R.S. §32-1154(A) & R4-9-108. RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Registrar find that the Complainant has failed to present a prima facie case showing that the Respondent is in violation of A.R.S. §32-1154(A) & R4-9-108. The undersigned Administrative Law Judge further recommends that the entire Citation and Complaint in Case Number 98- 2638 be dismissed.

Done this day, December 15, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of December, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By_______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826