ALJDEC

00F-M0206-ROC · Registrar of Contractors · 2000-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2000 APPEARANCES: Complainants, Thomas and Catherine Mullins were present. Respondent was represented by its qualifying party, Rick Norton. Christine Norton was also present. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Decision to the Director of the Arizona Registrar of Contractors. FINDINGS OF FACT On May 28, 1999, Complainants ordered a vinyl pool liner from Respondent. On June 25, 1999, the liner was installed by Steve, an employee of Respondent. Steve was assisted by his girlfriend. The cost of the liner and its installation was $2,200.00. Respondent was paid in full by Complainants. On June 26, 1999, the pool was filled with water. On June 27, 1999, Ms. Mullins testified that she entered the pool and felt wrinkles over the entire floor of the pool. Ms. Mullins testified that she called Ms. Norton on June 28, 1999 to inform her of the problem with the wrinkles. On June 30, 1999, Ms. Norton sent Steve back to Complainants’ home to remedy the problem. The device that was being used to remove the wrinkles from the pool floor was defective. Therefore, Steve could not accomplish the job at that time. Steve re- scheduled the appointment. On July 5, 1999, Steve returned to finish removing wrinkles from the pool floor. Ms. Mullins testified that on July 6, 1999, she entered the pool and could still feel wrinkles on the pool floor. Ms. Mullins testified further that she called Ms. Norton again to complain about the wrinkles and that Ms. Norton disputed the fact that any wrinkles continued to exist. The Mullins’ have since removed all of the wrinkles. Ms. Mullins testified that she believes the cause of the wrinkles was the improper installation of the pool liner. Registrar of Contractors Inspector James Walsh conducted a jobsite inspection on October 7, 1999. On October 8, 1999, Inspector Walsh issued a letter indicating that the “installation of pool liner appears to be within industry standards.” Mr. Walsh testified as to this finding at the hearing. Ms. Mullins testified that after researching the issue, she found that there are no industry standards for pool liner installation, only guidelines supplied by the manufacturer. Aquaflex Vinyl Engineering, Inc. (“Auqaflex”) is the manufacturer of the Complainants’ pool liner. The Complainants contend that their pool was not measured correctly by Steve prior to the liner being ordered. Steve submitted the following depth measurements to Aquaflex: 3’3” in the shallow end and 5’ in the deep end. After the problem of the wrinkles on the pool floor arose, Mr. and Mrs. Mullins measured the pool themselves. Ms. Mullins testified that the pool measures 3’ 5 1/2” in the shallow end and 5’2” in the deep end. Aquaflex assumes the installer provides the actual measurements of the pool and then routinely deducts 2% to 4% from the measurements provided by the installer, in order to properly fit the liner. See Complainant’s Exhibit 8. Ms. Mullins contends that the liner is over-stretched by six inches due to Respondent’s mistake in measuring. On July 16, 1999, an installer from Aaron Pools, a registered installer of pool liners manufactured by Aquaflex, inspected Complainants’ pool. The inspection report indicates: “liner is not installed evenly[;] the floor to wall seam is over 6” off in the deep end. The shallow end seam is high on one side & low on the other. This seam needs to be within at least 2” of floor to wall edge and should be approx. the same all the way around pool. The over stretching of the wall liner in deep end could cause a shorter life for liner. To properly repair[,] liner needs to be replaced & [sic], not just restretched or premature leaking will occur.” See Complainant’s Exhibit 7.

Mr. Mullins testified that after researching the subject, he found that the over-stretching of the vinyl material of the pool liner causes rapid deterioration and holes that need to be patched, shortening the life of the liner. Mr. Mullins further testified that as a result of the over- stretching, a liner that is rated to last for fifteen years (such as the one at issue here), will have a reduced life span of five to six years at best before it must be replaced. The Mullins’ pool liner came with a 15 year limited warranty. However, the warranty does not apply to damage due to improper installation or incorrect measurements. See Complainant’s Exhibit 9. Respondent’s license was canceled on January 3, 2000. The undersigned Administrative Law Judge finds based upon the evidence and testimony presented, that Respondent failed to install the pool liner in a professional and workmanlike manner, resulting in the shortening of the life of the liner, and further resulting in the possible rendering of the warranty on the liner, null and void. CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32-1154(A)(3), namely R4-9-108, as set forth in Findings of Fact ## 4, 8, 9, and 13. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has violated A.R.S. (32-1154(A)(7), as set forth in Findings of Fact ## 4, 8, 9, 11, and 13. It was wrongful of Respondent to not perform in a professional and workmanlike manner. Complainant has suffered substantial financial injury, in that they paid Respondent for the professional and workmanlike installation of a new vinyl pool liner and did not receive such, resulting in the shortening of the liner’s life by as much as 2/3 and possibly rendering the warranty null and void. A.R.S. (32-1154(C) provides that the cancellation of a license shall not deprive the Registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision suspending or revoking such a license. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class C-06 license pursuant to A.R.S. (32-1154. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes a properly licensed contractor to install a new pool liner of equal value in Complainants’ pool, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-06 license shall be placed on active suspension for a period of 7 days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. Done this day, March 23, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). [2] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [3] Black’s Law Dictionary, 1182 (6th ed. 1990).

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