ALJDEC

00F-M1234-ROC · Registrar of Contractors · 2000-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 30, 2000 and December 4, 2000 APPEARANCES: Jim and Julie Jarrett, Complainants in their own behalf Dale Howard, President, on behalf of the Respondent on October 30, 2000 No one appeared on behalf of the Respondent on December 4, 2000 ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Preliminary Matters The hearing of this matter was initially scheduled to commence on October 3, 2000. The Respondent requested a continuance which was granted and the hearing commenced on October 30, 2000. The majority of the relevant and probative evidence was presented but the hearing was not concluded. The parties were given the opportunity to finish the hearing by telephone but no satisfactory response for an agreed upon date was received. The case was therefore set for further hearing to commence on December 4, 2000. The parties were given the option of appearing by telephone. The Respondent moved to continue the date because its president, Dale Howard would be out of town at the time of the hearing. The motion was denied. A Motion for Reconsideration was submitted by Blaine L. Benson, Vice President for the corporate Respondent. The motion was denied with the restatement that the Respondent could appear by telephone. No one appeared on behalf of the corporate Respondent on the day of the hearing. There is no good cause shown for the failure of the Respondent to appear either through its vice president or possibly other employees, or by telephone. Absent such a showing the hearing proceeded and was concluded on December 4, 2000. Based on the evidence of record, the following findings are made. 1. The parties entered a contract whereby the Respondent would install a swimming pool and a pool deck at the Complainant’s home in Gilbert, Arizona. The amount of the contract was slightly over $21,000.00. The Respondent used a subcontractor, Edgewater, to perform the work. 2. The pool was completed in approximately June of 1998. The pool deck coating (deck), was laid over a preexisting concrete patio slab and over a newly poured slab around the pool. The deck consists of a concrete and fiberglass mixture which is applied onto the slab in molds. It is approximately 3/8 of an inch thick. 3. Shortly after the installation of the pool, the Complainants noted signs that there was a leak from the pool. They notified the Respondent of the problem. Initially the Respondent did not believe the pool was leaking and the Respondent’s attempts to find the leak by dye and pressure testing, were unsuccessful. Those portions of the Complainant’s back yard which were exposed (not covered by pool deck), were constantly saturated with water. The Complainants performed their own water evaporation test to show that there was a leak. 4. Areas of the deck sounded hollow and were coming loose from the slab. The deck on approximately half of the patio was replaced in July, 1998, but this repair did not last. 5. The Complainants filed their complaint with the Registrar of Contractors (Registrar), on March 15, 2000. 6. On May 8, 2000, Inspector Van Bagley (Bagley) of the Registrar’s Office performed an inspection of the Complainant’s pool and deck. The Respondent was not aware of the inspection and was not present. 7. On May 9, 2000, Bagley issued a Corrective Work Order (CWO), which required the Respondent to fix the leak and to replace the “patio and pool deck coating”. 8. A bonding agent is used in the deck coating and also acts as an adhesive on the slab surfaces. The evidence on the original application of the deck in this case is uncertain because the Respondent had a subcontractor do the work and the Respondent was not present when the work was done. 9. According to the Complainant, neither the older patio slab or the new slab around the pool was acid washed or sand blasted before the application of the deck. The evidence shows that when a portion of the patio deck was replaced, the slab was etched with a diamond blade. The evidence indicates that one of those processes should be used to clean and rough up a surface to generally enhance adhesion of a substance to be placed on the surface. The Respondent testified that a fresh slab which has not fully cured, does not require such treatment for the deck to adhere to the slab. The Respondent also testified that the deck should float and there should not be complete bonding of the deck to the slab because the slab has control joints but there are no control joints in the deck. According to the Respondent, if there was complete bonding of the deck to the slab, the expansion of the slab would cause excessive cracking in the deck. The Respondent could not explain why apparent random partial bonding of the deck with the slab, would be an appropriate application in this case. Kevin McLaughlin (McLaughlin), testified he did the original replacement on the patio and that the deck is supposed to adhere to the slab. However, Mclaughlin has only done this type of deck one time and his experience and knowledge is limited. The evidence shows that the portion of the deck which was replaced on the patio is again coming loose from the slab. In the final analysis, the evidence on this issue is unclear and it is uncertain how the original deck was, or should have been applied. 10. The Complainants finally located the pool leak and it was repaired in July, 2000. The Respondent offered to do repairs to the deck but this was declined by the Complainants who demanded replacement as stated in the CWO. 11. Bagley performed a pre-hearing inspection and concluded that there were still numerous areas where the deck sounded hollow and was lifting from the slab. Bagley did not note any excessive cracks in the deck. According to Bagley, at the time of the initial inspection, he was not aware that the materials and forms were still available for doing repairs because the Respondent was not present. Accordingly, he would allow repairs rather than replacement if the repairs would accomplish the necessary result. Bagley acknowledged that in his eight years with the Registrar’s office, he had limited exposure to this type of deck application. In view of this, the evidence regarding the practicability of repair rather than replacement of this particular deck material remains inconclusive but suggests suspect efficacy. Conclusions of Law The allegations in the Citation and Complaint concern A.R.S.§32- 1154(A)(3)/A.A.C. R4-9-108 workmanship, (A)(7), wrongful acts with substantial injury and (A)(23), failure to take appropriate corrective action.

1. The evidence readily supports a workmanship violation under A.R.S.§32- 1154(A)(3)/A.A.C. R4-9-108. The fact that it took two years to correct the leak coupled with the continuing problems with the deck, compound the workmanship violation to bring it within the ambit of A.R.S. §32- 1154(A)(7), a wrongful act with substantial injury. The Respondent’s testimony with respect to the attempts to locate the leak has been considered and it is found not to excuse the delay in finding and correcting the problem. It is noted that ultimately it was the Complainants who had to hire someone to locate the problem. 2. As previously stated, the evidence on the deck is problematical in that there was little competent testimony on how the deck was applied or how it should be applied. The Respondent has observed but has no personal experience in the application, Bagley has had very limited exposure to this particular process and McLaughlin has only done corrective work on the Complainant’s deck. Nevertheless, certain facts and evidence can be considered. The Respondent’s testimony regarding random partial floating and partial bonding of the deck, was never satisfactorily explained. This leads to a conclusion that this testimony is not based on any personal knowledge on the part of the Respondent, and it is given little weight. Another fact is that the Respondent corrected a portion of the patio and it has again manifested some of the original problems. Irrespective of whether the deck should or should not float, it should not sound hollow over a significant portion of its surface or have areas which rise and apparently leave gaps between the slab and the deck. 3. The issue is not so much whether corrective work should be done but whether the deck can be repaired or must be replaced. In viewing the photographic evidence, it is concluded that repair is inadequate. This is because of the inadequacy of the prior repair to a portion of the patio, and the numerous areas which are shown as requiring attention. These areas are spread over the entirety of the deck and constitute possibly 25% to 35% of the surface area. In view of the prior repair failure and the number of areas that would need correction, repair does not appear to be a viable option. 4. The Complainants assert that the deck coating process used by the Respondent is not suitable for its intended purpose and this is another reason the deck cannot be satisfactorily repaired or even replaced. The truth of this assertion is not at issue except that the Complainants possibly want to replace the deck with a more costly material or application. The Complainants have cited estimates of $8,328.00 to $19,407.00 to remove and replace the deck (the higher bid includes replacement of the underlying slab). 5. The cost apportioned for the installation of the deck was not established at the hearing so as to allow for a comparison with the proposed costs to replace the deck. 6. It is concluded that it is appropriate to require the Respondent to remove the current deck and replace it with a deck of comparable appearance and quality which will accomplish its intended purpose and is free of defects. The Complainants are not entitled to more than this as a consequence of this hearing. Alternatively, if the Complainants want an upgraded deck, they will have to pay the difference between the cost of a comparable replacement deck and any upgraded deck. The Respondent’s share of the cost for waterline tile if required, should not exceed $500.00. 7. The Complainants are informed they must allow the Respondent or its proper agents reasonable access to the premises in order for any corrective work to be done under the Registrar’s Order. Failure to allow reasonable access may relieve the Respondent of the duty to correct. The parties are advised that although the monetary value of the decking was not established, that the parties have a duty to deal reasonably and in good faith with each other, in order to implement the Order of the Registrar. Recommended Order In view of the foregoing it is recommended that commencing on the effective date of the Order entered in this matter that the Class B-06 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has removed or caused to be removed the existing deck and replaced it with a deck of equal or higher quality which will accomplish its intended purpose, plus paid any expense up to $500.00 towards waterline tile, if such tile is required; It is further recommended that in lieu of the replacement of the deck, the parties are free to enter a financial settlement of this case prior to the effective date of the Order entered in this matter; It is further recommended that if the Respondent accomplishes the above described corrective work or the parties have entered a financial settlement on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, December 6, 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