ALJDEC decisions subject to certification as final

06F-2093-ROC · Registrar of Contractors · 2007-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 20 and April 4, 2007

APPEARANCES: Complainant appeared on his own behalf. Hydro Tec Pools and Spas, Inc. (Hydro) appeared through its president and qualifying party, Tom Tatosian (“Tom”) and Blue Diamond Pools, Inc. (“Blue”) appeared through its president and qualifying party, Mark Speers (“Mark”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to written contract, Complainant retained Blue to accomplish a remodel of his existing swimming pool, including the pool deck area. Complainant alleges certain deficiencies in the work performed by Blue and Hydro. These issues are discussed in the findings below.

2. At the outset of the scheduled hearing, there was an issue regarding whether or not Hydro was also responsible for the above-described pool renovation project. After spending several hours on this issue, wherein Tom had initially disputed any responsibility for Hydro on the project, pursuant to stipulation of record, Tom and Mark agreed that, for the purpose of the instant hearing only, both of the named Respondents may be deemed responsible for any determined deficiencies in the construction project at issue herein. Accordingly, all work referred to in the instant Decision and Order shall be described as work performed by Respondents.

3. Although Complainant contends that the above-described stipulation of record demonstrates that Tom had lied in his testimony at the hearing and to the Registrar of Contractors, prior to the time of said stipulation, it is determined and held that the main reason Tom agreed to the stipulation of record was that he was becoming very frustrated and irritated at the length of the hearing and just wanted to move the matter forward in a more expeditious manner. Moreover, he stated that due to his current business relationship with Mark, in a new pool contracting business, any ordered repairs would, in fact, be accomplished by the new entity, since the Respondents named herein were no longer in business.

4. Although Complainant also filed a Complaint against Blue in Registrar of Contractors’ case no. 06-2094, essentially asserting the same allegations as set forth in the Complaint filed against Hydro (no. 06- 2093), for reasons that are not totally clear from the instant record, Registrar of Contractors’ case no. 06-2904 was never referred for hearing and was deemed closed by the office of the Registrar. Nevertheless, Blue’s name and license number were added to the instant Citation by the Registrar.

5. The following salient facts were adduced at the hearing and are important to note:

a. Complainant is not satisfied with the manner and method in which Respondents renovated the expansion joints on the pool deck. The expansion joint material in question is a several inch long plastic type material that is inserted between the various sections of the pool deck. According to Complainant, the old expansion joint material should have been completely removed and new expansion joint material installed. In addition, he claims that the proper method to complete the work on the expansion joints, was to install the new joint material prior to the time that the new deck material was installed, thereby providing a very tight fit between the edge of the pool deck material and the expansion joint. b. Evidence of record showed that Respondents did not remove and replace the existing expansion joint material, but instead installed new joints caps on top of the existing expansion joints material. In addition, the new joint caps were installed after the new deck coating was installed. Respondent’s procedure of installing the joint caps, after the deck coating was placed on the concrete, caused Respondents to saw-cut or install a “relief-cut” on the top portion of the expansion joints, prior to placing the joint cap material on top of the existing expansion joint. Complainant contends that by saw-cutting the expansion joints, unacceptable gaps have been created in the area of the expansion joints. According to Complainant, these gaps now allow excessive dirt and debris to accumulate in the joints. c. Evidence of record showed that the expansion joint caps were installed with some type of construction adhesive. Complainant is concerned that the adhesive utilized by Respondents will not last long, due to the type of intense heat that is typical in the greater Phoenix area. Nevertheless, Complainant indicated that none of the joint caps have come loose, as of the date of the instant hearing. d. Complainant presented exhibits from two companies that manufacture expansion joint caps and both indicate that the caps are installed prior to the concrete pour or prior to the wet concrete setting. Nevertheless, there was no showing that the expansion joint caps installed by Respondents were manufactured by either of these companies. e. Subsequent to filing the Complaints against Blue and Hydro, the matters were assigned to one of the Registrar’s inspectors. The assigned inspector appeared at the instant hearing and presented testimony. f. On May 15, 2006, the assigned inspector conducted a jobsite inspection. Subsequent to completing the inspection, the inspector issued a Corrective Work Order (“CWO”) to Blue (none was issued to Hydro). The CWO required Blue to accomplish specified remedial work within a stated period of time. However, the CWO also indicated that the deco drain and the expansion joints were installed within industry standards and thus, no action was required of the contactor on these issues. g. Evidence of record showed that the remedial work required to be accomplished in the above-described CWO, issued against Blue, has been completed in a proper workmanlike manner. h. In regard to the Complaint filed against Hydro, the inspector issued a Registrar of Contractors’ form RC-C-007, indicating his findings that the “contract was with Blue Diamond Pools, Inc., not Hydro-Tec Pools and Spas, Inc.” In making this determination, the inspector apparently not only considered the applicable contract document but also the representations by Tom, at the jobsite, regarding Hydro’s position regarding any involvement on the project in question. i. The assigned inspector testified at the hearing that he also conducted a pre-hearing inspection, where he again viewed the disputed joints. At the time of said pre-hearing inspection, he still believed that the work on the expansion joints was within industry standards and he did not feel there were any excessive groves in the expansion joints. In addition, he indicated that if you butt the deck material up to the expansion joint material, you could get unsightly flaking-off of the edge of the deck material, since the expansion joints are designed to move. j. The inspector further commented in regard to the saw-cutting and “tooling” of the joints by Respondents. He believes that the manner of installation of the expansion joints, utilized by Respondents, would have the effect of making the edge of the deck stronger and less likely to flake- off. After having an opportunity to view the above-described exhibits from the two joint cap manufacturers, the inspector indicated that said documents did not change his mind, in regard to his ruling on the joint cap installation. k. Complainant contends that the language of the applicable contract required Respondents to remove and replace the existing expansion joint material and replace with new joint material. l. The contract between the parties was entered into evidence. On line “K” of the contract, it provides “replace all existing deck drain and joint caps…” (emphasis added). m. Blue’s salesman for the project, John Crawford (“Crawford”) appeared at the hearing and presented testimony. Crawford prepared the contract in question and testified that same merely called for replacing the joint caps, not the entire expansion joint. According to Crawford, if he had intended to remove the expansion joints, the contract would have stated something to the effect of “saw cut out the existing expansion joints” and would have definitely used the words “expansion joint” instead of the words “joint caps.” Moreover, he indicated that the cost to completely saw-cut out the expansion joints would have at least doubled the contracted cost for re-finishing the pool deck. In addition, the contract shows that there was no specified cost for replacing the joint caps, but that said aspect of the contract was “included” as part of the overall contract price. All other upgrade portions of the contract, showed an itemized price. n. Tom testified that the top coating of the pool deck does not adhere to plastic and therefore, in his opinion the deck material would not assist to hold expansion joint caps in place. In addition, he indicated that it is normal to “tool” the edges of the joints between the sections of the deck and there will always be some degree of indentation on both sides of such joints. o. There was no dispute that the deco drain was replaced. According to Mark, a deco drain is quite different from an expansion joint, and the only effective way to redo a deco drain is to remove the entire drain, as opposed to attempting to place a new “cap” in said area. He also testified that the original expansion joint construction allows for the joint material to lock into place in the subsurface concrete on both sides. According to Mark, if the entire expansion joint material was saw-cut out, the locking together of the two concrete sections would be lost. p. It was undisputed that Blue was suspended by the Registrar of Contractors, during a period of time while it was working on the project in question.

6. It is determined and held that the applicable contract only references “joint caps” not expansion joints. By virtue of placing a new cap or veneer on top of the existing expansion joint material, Respondents are found to have complied with the contract language which indicates new joint caps (not new entire expansion joints) on top of the existing top portions of the original expansion joint material. According to the contract, the application of new joint caps was included in the over-all price of the contract. If Complainant required Respondents to replace the entire expansion joint material throughout his deck, then he should have assured that such a provision was specified, as a detail in the contract before signing same. Complainant failed to sustain the requisite burden of proof on this issue.

7. Blue’s performance of contracting work while its license was suspended is found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

8. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Blue was advised that in the event of a finding of a violation against Blue, Blue’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Blue and said notice revealed numerous prior complaints that had been closed as resolved or settled after issuance of a corrective work order or formal citation. In addition, said record of Blue shows a prior lengthy disciplinary suspension Therefore, Blue’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

9. Notice is hereby further taken of official Registrar of Contractors public records, which reveal that Blue’s contracting license was revoked effective on April 28, 2006. Such revocation does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar from issuing separate disciplinary orders. Moreover, Blue’s existing revoked license status must be considered when determining appropriate penalties in this case.

CONCLUSIONS OF LAW

1. Blue violated the provisions of A.R.S. § 32-1154A (7), solely for the reason that it performed work on the project at issue herein while its license was on suspension.

2. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

3. Complainant failed to sustain the burden of proof to establish that Respondents violated the applicable charged sections of the State’s Contracting laws, in regard to the issue of the installation of the joint caps. Therefore, the evidence of record did not sufficiently sustain a finding of any violations by Hydro of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Blue’s Class B-05 license shall be revoked on the effective date of the Order entered in this matter. Based on the foregoing, it is hereby recommended in regard to Hydro only, that this Citation (no. 06-2093), together with the Complaint upon which it is based, be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, April 9, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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