ALJDEC

98F-L0260-ROC · Registrar of Contractors · 1999-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 1999 (Lake Havasu City, Arizona)

APPEARANCES: Barbara Butrymowicz appeared on behalf of Complainants; Respondent was represented by Owner and Qualifying Party Rex Wolterman.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This complaint involves workmanship on a pool built in Lake Havasu City, Arizona for Complainants John and Barbara Butrymowicz by Respondent Mohave County Pools and Spas. No ROC Inspector was available to testify, so the two prior Inspector’s notes were used as evidence. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations of the statutes governing contractors and recommending that Respondent make repairs or have its license suspended. FINDINGS OF FACT 1. In late 1996 and early 1997, Respondent built a pool for Complainants. From the beginning the plaster was discolored and there was a visible boot print and bucket ring in it. In May 1998, Complainants filed their complaint with the Registrar of Contractors. Before a jobsite inspection was done, Complainants agreed to have Respondent drain and acid wash the pool. However, this was to be delayed until November 1998 because of the heat. 2. At the time, the Lake Havasu City ROC Inspector was Bill Spence. On June 5, 1998, he issued a Corrective Work Order (CWO) that required Respondent to drain, sand, and wash the pool according to the parties’ agreement. Spence then closed the complaint. 3. In January 1999, Complainants asked that the complaint be re- opened because, although Respondent had performed the repair, they were not satisfied with the outcome. Inspector Barry Billings, who replaced Spence, re-opened the complaint and scheduled a jobsite inspection. 4. In February 1999, Billings inspected the pool and found “visible discoloration in plaster.” Respondent stated that he would take care of it. 5. In March 1999, Billings tried but could not contact Complainants. Therefore, he closed the complaint again. Soon after, the parties asked for another jobsite inspection. On March 26, 1999, Billings inspected again and found that the boot and bucket prints had been corrected, but there was still “obvious discoloration.” Complainants asked for a hearing. 6. At the hearing, Mrs. Butrymowicz testified that the plaster has been discolored since the beginning and that Respondent has made several attempts to correct it by draining, sanding, and acid washing it, but to no avail. The pool cannot be drained when it is hot so the repair attempts have taken a long time. 7. Respondent testified that he has not neglected Complainants but does not feel that he can satisfy them. He is not sure what is causing the discoloration. He can continue to keep acid washing the pool, but this will wear down the plaster. CONCLUSIONS OF LAW 1. Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met the burden. 2. Respondent has violated A.R.S. § 32-1154(A)(7) and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108. 3. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(23), by failing to comply with a properly issued Corrective Work Order. In mitigation, however, it should be noted that Respondent made a good faith effort to comply with the CWO, but fell short. 5. Respondent should be given one more chance to properly correct the pool plaster. This ALJ does not recommend a civil penalty in this matter. RECOMMENDED ORDER IT IS RECOMMENDED that Class B-05 license 103029, issued to Mohave County Pools and Spas, be suspended beginning the effective date of the Registrar’s Order until Respondent has repaired or caused to be repaired in a workmanlike manner the discolored pool plaster. IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place.

Done this 24th day of November 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of November 1999, to:

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

By ___________________________

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