ALJDEC

00F-0217-ROC · Registrar of Contractors · 2000-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2000 APPEARANCES: Kathy Buhler, Complainant, in her own behalf Gordon Jiroux, on behalf of Scottsdale Shotcrete ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The parties entered a contract in late September, 1998, whereby the Respondent was to install a swimming pool at the Complainant’s home in Phoenix, Arizona. The cost, including tax was $13,134.95. The Respondent had specifically excluded the installation of an electrical sub panel from the contract. 2. Construction began in December, 1998. 3. The Complainants had a spa in the backyard which was connected to an electrical sub panel which in turn connected to the main electrical panel. The Respondent moved the spa in order to install the pool. 4. Although the contract excluded replacement of the sub panel, the Respondent changed the number of available circuit breakers in the panel, from two to six. The Respondent replaced the two circuit breakers which had been used for the spa ( 20 and 30 amps), with two 15 amp breakers, in order to connect and turn on the pool equipment. The spa was disconnected. According to the Respondent, the four additional circuit breaker spaces were not used because wiring to, and the circuits of the main panel were fully utilized. The Complainants were aware of the fact that the pool and the spa could not be operated at the same time. 5. The Complainants’ back yard is irrigated and the Complainants built a berm for the deck and at the fence. 6. In approximately early June, 1999, the pool failed inspection because the circuit breakers needed to be labeled. The problem was corrected and the Complainant (Mrs. Buhler), told the Respondent she wanted the pool operating. According to the Respondent the wiring which attaches the sub panel to the main panel cannot safely accommodate the additional load for the pool and spa circuits to run at the same time. The testimony shows that Mr. Buhler was informed of this problem and responded that it would be taken care of. The pool was accepted as completed in mid June, 1999. 7. The pool equipment pad as initially placed, was moved. Upon being moved, it was not sufficiently high to avoid the water from the irrigation which resulted in water coming into contact with the motor and damaging it. Mrs. Buhler testified she assumed the pad would be placed higher. The Respondent replaced the motor at no charge to the Complainant and told the Complainant to build a berm around the equipment pad to avoid future water problems. The Respondent testified he did not build up the ground under the pad because of likely erosion. The Complainants have since built a berm to protect the equipment pad. 8. The Complaint was filed with the Registrar of Contractors (Registrar), on July 20, 1999. 9. Inspector Bob Mechsner (Mechsner), performed an inspection on August 20, 1999. The Respondent was not present for the jobsite inspection and Mechsner relied on the representations of the Complainant. 10. On August 24, 1999, Mechsner issued a Corrective Work Order (CWO) which required the Respondent to: K. Correct and install the electrical equipment required to have the pool, water feature and spa functioning; L. The equipment pad was too low and the Respondent was to correct it by appropriate means; M. It was undetermined if water leveler and aerator were working. The Respondent was to provide the Complainant with the necessary instructions for proper operation.

11. The water leveler is mechanical and merely needs an adjustment. According to the Respondent, the Complainant (Mr. Buhler), was previously shown how it worked. This issue is insufficient to establish a violation. 12. None of the work required by the CWO was done by the Respondent resulting in the instant hearing. 13. In October, 1999, the Complainant had Valley Spa Service install a 20 amp and 30 amp GFCI breaker for the spa. The cost was $371.60. 14. The Complainants have not paid the Respondent the final $600.00 on the contract price. Conclusions of Law The allegations in the Citation and Complaint concern A.RS. §32- 1154(A)(3) / A.A.C. R4-9-108 workmanship standards, (A)(7), wrongful or fraudulent act with substantial injury and (A)(23), failure to do corrective work. 1. The contract shows that the Respondent was not required to install a new electrical sub panel. The Complainant was informed that the pool and spa could not operate at the same time. The Respondent testified that the electrical circuits in the sub panel would have to be limited in order to pass inspection and that Mr. Buhler was informed of this and said he would take care of it. This testimony was not rebutted. The fact that additional circuit breakers have been installed by Valley Spa Service does not establish that such installation is in conformance with the applicable code or was the responsibility of the Respondent. Based on the evidence presented at the hearing, disconnecting the spa and replacing the circuit breakers in order to connect the pool, was not a violation and the Respondent was not required to correct the condition as set forth in the CWO. No violations are found on this issue. 2. With respect to the matter of whether a berm should be built or the equipment pad should be set higher, it is concluded that the contract did not specifically provide for the method of protecting the pump. The Complainants were or should have been aware of the problems which could be caused by irrigation. No substantive evidence was presented that the problem was clearly addressed prior to the installation of the pad. Nevertheless, the Respondent replaced the pump at no cost to the Complainants and the Complainants have built a berm around the pad. For all intents and purposes, the issue is moot. No violation is found. 3. There is insufficient evidence to conclude the water leveler and aerator issues constitute a violation. It is suggested that the Respondent inform the Complainants about the correct operation of these features. Recommended Order In view of the foregoing it is recommended that the Citation and Complaint upon which it is based be dismissed. Done this day, January 18, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

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