ALJDEC

00F-2013-ROC · Registrar of Contractors · 2000-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 26, 2000. APPEARANCES: Bill and Debbie Hershey appeared on their own behalf. Dick Nichols, sole proprietor of Action Management, appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this case, Respondent Action Management (hereinafter Respondent, is alleged to have violated A.R.S. §32-1154(A) (3) (violation of any rule promulgated by the Registrar), A.R.S. §32-1154 (A)(7) (doing of a wrongful or fraudulent act resulting in substantial injury to any person), and A.R.S. §32-1154(A)(23) (failure to comply with a corrective work order issued by the Registrar. Complainants have sustained their burden of proof in this case and have demonstrated Respondent’s violation of each of the preceding statutes. FINDINGS OF FACT 1.In June, 1999, Complainants and Respondent entered into a contract for Respondent to build a fiberglass pool at Complainants’ home in Fountain Hills, Arizona. The purchase price of the pool was $23,000. Of that amount, Complainants have paid $15,000 in two payments, the first for $10,000 having been made in October, 1999 and the second for $5,000 having been made in December, 1999. 2. Construction was started in October, 1999 when the pool was excavated. Respondent had told Complainants that the pool would be done in three to four weeks. In fact, despite the passage of several months, construction of the pool was never finished in a professional and workmanlike manner. 3. Problems with the quality of the work being done began to appear soon after construction began. Despite repeated efforts to have Respondent finish the job and repair the problems, Complainants could not get Respondent to repair any of the problems. As a result, on February 17, 2000, Complainants filed the instant complaint with the Registrar. 4. Mr. Mel Purchase, an inspector with the Registrar of Contractors, was assigned to this case. He conducted a job site inspection on March 1, 2000. While the Complainants were present, Respondent failed to appear until after the inspection had been done. At the inspection, Mr. Purchase observed the following problems, all of which were deemed not to conform to the standard of professional and workmanlike construction, the standard set by A.A.C. R4-9-108: A. The pool plumbing was leaking. B. The sub-contractor who completed the water supply lines to the pool used gray electrical “PVC” pipe instead of the required white “PVC” pipe which is designed for water. C. The fiber optic lighting which rings the pool was not installed before the deck was poured as it should have been and further was not installed by an electrician. D. The pool light was not installed in the correct location. E. The electrical box, which appears to be 10 to 12 inches tall, was installed in the middle of the patio where it could present a tripping hazard. F. Because the wrong size piping was installed, it had to be removed from under the cool decking. This necessitated saw cutting the decking. After the saw cut was made, no efforts were made to replace the cool decking. G. In two areas, the cool decking was chipped as a result of efforts to correct the improperly installed fiber optic light track. The cool decking was not replaced or repaired. H. The skimmer was not working as a result of the lines to the skimmer being plugged with concrete. The homeowners had the problem fixed by a different contractor. I. The fiberglass pool structure had cracks in it. J. There were stains in the bottom of the pool as a result of concrete that was accidentally spilled by the cool decking sub contractor at the time the pool was being built. These stains, as shown by the photos that were admitted into evidence, are dark gray and present a horrible blemish against the pool’s white lining surface. K. After the pool was removed and reinstalled as a result of the problem with the back fill, the contractor failed to have the necessary governmental inspection conducted on the electrical and water plumbing. 5. According to Mr. Purchase’s testimony, all of these problems demonstrated that the workmanship on this pool fell below the standard required by A.A.C. R4-9-108. Mr. Purchase also testified that construction of this pool was so bad that if it were his, he would want it taken out. 6. As a result of the findings during the March 1, 2000 inspection, the Registrar issued a corrective work order on March 6, 2000. The corrective work order required the Respondent to correct the problems identified above within 15 calendar days. 7. Despite having had months to correct the problems, only minimal efforts were made to correct the problem. In fact, Respondent made no effort to make any corrections until two days after the 15 day deadline had passed. On the day that some of the repairs began, Respondent’s electrician apparently became upset with Mrs. Hershey. As a result of words exchanged between Mrs. Hershey and the electrician, the electrician was compelled to leave the Hershey’s property by a Maricopa County deputy sheriff. Respondent, however, was not prohibited from returning to the Complainant’s property with other workers to complete the repairs. Nevertheless, Respondent never returned to the property to complete any more repairs, despite the passage of almost three months between the time of the March attempt to complete some repairs and the hearing in this matter. 8. Mr. Purchase conducted a pre-hearing inspection approximately one week before the hearing to see what corrections had been made. While the electrical box had been moved, almost no other repair work had been completed. 9. Complainants have incurred substantial injury as a result of Respondent’s wrongful conduct. They have paid Respondent for a pool that is improperly built, cannot be used, and in many facets cannot in all likelihood be repaired. 10. It is clear from the testimony of the parties, as well as their respective demeanors, that Complainants and Respondent can no longer work together to resolve the problems created by Respondent’s poor workmanship. It is also evident from the testimony adduced at the hearing that Respondent has no interest in seeing that this job is properly completed. 11. It is clear to the undersigned that Respondent’s work was far below that required by administrative regulation. Mr. Purchase’s testimony amply demonstrates the breadth of the problems in this case. It is clear that to order Respondent to affect repairs would not protect Complainants nor would it adequately impress upon Respondent the need to complete work in a timely, professional, and workmanlike manner. On the other hand, to order outright restitution in this matter might result in a windfall to Complainants since it appears that some of the work was properly completed. Further, to order full restitution would be far too speculative in this case since no evidence was presented regarding the cost of repairing the pool. Rather, it would far better serve the purposes of Title 32 to order Respondent to hire a properly licensed general pool contractor to oversee the repairs that must be made to this pool in order to bring it into compliance with applicable building codes and to ensure the Complainants receive a fully functional, properly constructed pool. 12. The undersigned has reviewed and considered Respondent’s two year complaint history in arriving at the recommended decision in this case. It should be noted that Respondent’s license was suspended on March 29, 2000 and is presently suspended due to failure to post a bond. CONCLUSIONS OF LAW 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (2). Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state . . . * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (23). Failure to take appropriate 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 a written directive from the registrar.

AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. The Complainants have 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). 3. Arizona Revised Statute 32-1154 (C) specifically provides that suspension of a license by operation of law does not “deprive the registrar of jurisdiction to proceed with any . . . action or disciplinary proceeding against such license, or to render a decision suspending or revoking such license, or denying the renewal or right of renewal of such license.” 4. The evidence establishes that Respondent violated A.R.S. §32- 1154(A)(2 ) as shown in finding of fact paragraph 4(B) above. The evidence further establishes that Respondent violated A.A.C. R4-9-108 and, consequently, A.R.S. §32-1154(A)(3 ) as demonstrated in findings of fact paragraphs 4 and 5 above. Finding of fact paragraph 4 also demonstrates a violation of A.R.S. §32-1154(A)(7 ). Finally, findings of fact paragraphs and 8 above demonstrate that Respondent failed to comply without justification with the corrective work order dated March 6, 2000. RECOMMENDED DECISION Based on the foregoing, the undersigned recommends to the Director that Respondent’s Class C-05 license number 104662 be revoked 60 days after the effective date of the Director’s order in this case unless, prior to the expiration of that 60 days, written proof is provided to the Director that Respondent has hired and paid for a properly licensed general pool contractor to complete the following repairs in a professional and workmanlike manner as prescribed by A.A.C. R4-9-108: 1. Repair or replace any leaking pool plumbing; 2. Ensure that all water piping and electrical conduit comport with applicable building codes and are of a proper size and type with proper fittings; 3. The optical lighting attached to the cool decking shall be installed in the correct manner by a properly licensed sub- contractor; 4. The pool light shall be properly located at the end of the pool; 5. The electrical box shall be relocated to a place where it does not present a tripping hazard; 6. All cool decking shall be properly repaired or replaced; 7. The fiberglass pool liner shall be repaired or, if necessary in the professional opinion of the general pool contractor hired to complete the repairs, replaced in order to eliminate the cracking and staining; 8. All necessary inspections and permitting shall be completed on the pool. The pool contractor hired by Respondent shall be approved by Complainants in a timely manner. If written proof of the above is received by the Director on or before the expiration of 60 days after the effective date of the Director’s order, then no license revocation should take place and this case should be closed. Done this day, July 10, 2000.

______________________________________ Gregory L. Hanchett 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