ALJDEC

00F-M1805-ROC · Registrar of Contractors · 2001-01-26

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2001.

APPEARANCES: Complainant, William Gerulsky, appeared in his own behalf. Respondent, Hop Cassidy Pools, Inc., appeared through its President and qualifying party, James Moss. Respondent, K M Concrete, Inc., appeared through its President and qualifying party, Kent McMillan.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The two above-captioned cases were consolidated for the purposes of hearing, since both involved the same underlying issues of law and fact, and also entailed the use of the same witnesses and evidence.

2. Pursuant to a written proposal and contract, Hop Cassidy Pools, Inc. (herein called “Hop Cassidy”) agreed to and did construct a swimming pool and surrounding decking on Complainant’s property located in Gilbert, Arizona.

3. K M Concrete, Inc. (herein called “K M”) was the selected specialty subcontractor for the concrete work on this project, including the deck.

4. Complainant had occupied the residence for approximately one year prior to the pool construction work. Hop Cassidy completed the contemplated work in early February, 1999.

5. It was not effectively disputed that the underlying soils at and around Complainant’s property were of an expansive nature. Both of the named Respondents acknowledged their awareness of this condition, and Hop Cassidy had instituted and followed policies designed to alert all prospective customers of expansive soils considerations, including express instructions to keep excessive water away from the pool and deck structure also generally including a suggestion to favorably consider the installation of a gutter system on the existing residence to divert roof water run-off.

6. The credible evidence tended to demonstrate that the methods utilized for the construction of Complainant’s pool, as well as for all pools completed by Hop Cassidy for a substantial time period, incorporated provisions for “floating” deck slabs.

More specifically, the installed decks would have no positive connection to the adjoining bond beam of the pool structure, enabling both features to move independently. K M was informed of and followed this long-standing policy applicable to the construction of Complainant’s pool and deck.

7. It was admitted that, following the pool installation, Complainant, on his own, undertook and completed all landscaping and irrigation for the rear of the property. No licensed landscape contractor was retained by Complainant for the actual performance of any portion of this work. The adjacent ground surfaces were shown not to have been properly sloped away from the pool and deck, and no roof gutters had been installed. Moreover, several plantings of shrubbery and an underground drip irrigation system were shown to have been placed by Complainant suspiciously close to the edge of the decking.

8. Not long after the decking was completed, small visible hairline cracks developed, three of four of which subsequently widened to significant proportions. The location of these sizable cracks appeared to coincide locations where little or no extent of lifting of the deck above the pool tile line was observable.

9. The evidence failed to sufficiently establish that the above- described cracking condition was traceable to any act or omission of either Hop Cassidy or of K M so as to reflect adversely upon their workmanship. On the contrary, other equally or more plausible causal explanations for the visible cracks were shown to exist, most notably the disregard by Complainant of specific instructions to keep water away from the installed decking. The election by the property owner to perform all of his own surrounding landscape work must be held to carry with it a degree of responsibility for any adverse impact on the deck structure.

10. Even attributing a somewhat higher element of knowledge and experience to both Respondents as to the consequences of water being introduced into the expansive soils, and remaining mindful of the tendency not to encourage or permit licensed contractors to disclaim in advance or to otherwise avoid applicable obligations to assure that their construction efforts produce structures that are fit for their intended aesthetic and functional purposes, it must nevertheless be found and determined in this case that Complainant has failed to sustain his requisite burden of sufficiently proving that any of the work performed by or on behalf of either Respondent was deficient or substandard.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has 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 (1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); See also Rule R2-19-119, A.A.C. 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).

2. The totality of the evidence of record failed to sufficiently establish that the deck cracking was proximately caused by actions or omissions of either Hop Cassidy or K M. Consequently, Complainant has not sustained his burden of proving any violations of the State’s contracting laws, (A.R.S. §32-1154A) as charged hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citations and Complaints in Cases Numbered M00-1804 and M00-1805, issued respectively against Hop Cassidy and K M, be dismissed.

Dated: February 2, 2001.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

ATTN: Joyce Armijo -----------------------

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