ALJDEC

99F-1524-ROC · Registrar of Contractors · 1999-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 1999. APPEARANCES: Gregory Sims, Complainant, appeared on his own behalf. David Schrand appeared representing Sunburst Pools and Spas, Inc., Respondent and holder of class B-05 license number 090829.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Gregory Sims, Complainant, resides at 6774 W. Lone Cactus Drive, Glendale, Arizona. 2. Sunburst Pools and Spas, Inc., Respondent, holds class B-05 license number 090829. 3. This matter arises out of a contract for construction of a pool and deck. 4. Dissatisfied with the color of the deck and the function of the skimmer, as well as Respondent’s response to these concerns, Complainant froze the funds earmarked to fund the construction. As a result, the parties entered a written agreement on September 11, 1998. The agreement states: All parties have agreed to presently release the amount of $14,997.00 to Sunburst Pools.

A courtesy visit by the Registrar of Contractors is scheduled for October 8 at 7:00 a.m. All parties agree to abide by his recommendation regarding acceptability of the kooldeck color.

Upon compliance with the registrar’s deck recommendation, as well as Pebble Tec and skimmer repairs, the balance of $1,003.00 may be released.

5. The preponderance of the evidence establishes that Respondent agreed that the skimmer required repair, and that it undertook efforts to perform the repair. 6. On October 8, 1998, Lewis King, Inspector for the Registrar, conducted a courtesy inspection of the kooldeck color. He concluded that the color of Complainant’s deck is approximately the same as the color Respondent showed Complainant in a brochure. It is noteworthy that the brochure states that “[t]he colors shown above are . . . approximate.” The preponderance of the evidence establishes that Inspector King conducted the inspection responsibly and properly. 7. Dissatisfied with Inspector King’s conclusion, Complainant filed a formal Complaint with the Registrar on November 10, 1998. In the Complaint, Complainant charges that Respondent failed to provide the deck color that he selected--“Adobe Buff”—and that it failed to repair the skimmer. 8. On February 5, 1999, after formally inspecting the pool deck and skimmer, Inspector King issued a Corrective Work Order (“CWO”) ordering Respondent to repair the skimmer. The preponderance of the evidence establishes that the CWO is reasonable and justified. Inspector King also found that the color of Complainant’s deck is approximately the same as the color Respondent showed Complainant in a brochure, rendering the same finding with respect to the deck color that he rendered during the courtesy inspection. 9. The preponderance of the evidence establishes that Respondent timely complied with the CWO.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts with respect to the skimmer, Complainant fails his burden of demonstrating a violation. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). However, notwithstanding a finding that remediation is required, construction work is not an exact science and it is not uncommon in the industry that remediation of poor workmanship is required, prior to or subsequent to completion of a project, in order to bring the final work product up to industry standards. Accordingly, a contractor should be given a reasonable opportunity after a formal inspection by the Registrar to complete necessary remedial work, as was ordered in this matter. 4. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts with respect to the deck color, Complainant fails his burden of demonstrating a violation. Complainant agreed to accept the opinion of an inspector from the Registrar. That agreement is legally binding in the absence of significant evidence that the Registrar’s inspection was irresponsible or improper. Two inspections found contrary to Complainant’s position. 5. With respect to Respondent’s alleged failure to take corrective action, Complainant fails his burden of demonstrating a violation of §32- 1154(23).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that he take no action

. . .

against Respondent and that the Citation and Complaint be dismissed. Done this day, June 23, 1999.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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