ALJDEC decisions subject to certification as final

06F-M2288-ROC · Registrar of Contractors · 2007-06-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13, 2007 APPEARANCES: Complainant Sherry Stephens appeared on her own behalf. Respondent Aqua Vista Pool and Spa, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Aqua Vista Pool and Spa, Inc. (“Aqua Vista”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Background On November 6, 2006, Aqua Vista filed a Petition for Chapter 7 Protection in the United States Bankruptcy Court, District of Arizona. On November 22, 2006, the Registrar of Contractors issued an Order of Closing due to the imposition of the Automatic Stay pursuant to 11 U.S.C. § 362(a). On February 21, 2007, Complainant Sherry Stephens was granted relief from the Automatic Stay by U.S. Bankruptcy Judge George B. Nielsen, Jr. On March 26, 2007, the Registrar of Contractors re-opened this matter. On May 9, 2007, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on June 13, 2007 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainant Sherry Stephens appeared on her own behalf. No one appeared on behalf of Aqua Vista. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Aqua Vista, or the receipt of any information that would constitute good cause for Aqua Vista’s absence or delay. No such information was received. Therefore, the hearing proceeded in Aqua Vista’s absence. FINDINGS OF FACT Aqua Vista is the holder of a Class B-05 license (No. 087792) issued by the Registrar of Contractors (“ROC”).[1] In or about September 2005, Complainant Sherry Stephens contracted with Aqua Vista for Aqua Vista to renovate her existing pool. The pool was not functioning well as the pop-up heads on the cleaning system were not cleaning the pool. Ms. Stephens’ contract with Aqua Vista specified that the pool equipment would be relocated, the pool would be resurfaced with Pebble Tec, a small water feature would be installed, and a new drain would be installed to ensure proper cleaning. The total contract price was $24,700.00. On September 27, 2005, Ms. Stephens paid Aqua Vista $12,000.00 toward the contract price. Aqua Vista performed its work on Ms. Stephens’ pool, however, the drain was not installed per plans. Instead of installing the drain on the bottom of the pool surface, Aqua Vista installed the drain on a side wall of the pool. Further, Aqua Vista did not install a Pebble Tec finish, but rather a product that resembled Pebble Tec. In Ms. Stephens’ estimation, the installation was “horrible”. Ms. Stephens contacted Aqua Vista to express her concerns and was told that the drain installation would be more efficient on the side of the pool. Aqua Vista acid washed the pool surface in an attempt to alleviate the issues with the newly installed surface. Ms. Stephens remained dissatisfied. Ms. Stephens contacted the manufacturer of Pebble Tec and discovered that Aqua Vista had not been authorized to install Pebble Tec. When confronted with this information, Aqua Vista responded that the product used “was just like Pebble Tec.” Ms. Stephens also discovered that the pop- up heads still did not function and the cleaning system did not operate properly. At this point, Aqua Vista ceased returning Ms. Stephens’ phone calls. On May 17, 2006, Ms. Stephens filed a complaint against Aqua Vista with the ROC. In her complaint, Ms. Stephens alleged the following: I hired Aqua Vista Pool to move my pool equipment, resurface the pool and install a waterfall. The pool surface is not the product agreed upon and was installed extremely poorly. The pool equipment was moved but has not functioned properly since it was moved. The water feature was eventually installed correctly but the light is not to code. The pipes were left above ground when the equipment was moved and never finished off. A drain was to be installed in the bottom of the pool but was instead installed in the side of the pool where it is ineffectual. Efforts to resolve these problems with the contractor have been unsuccessful. I have written letters that went unanswered. Two weeks ago, the pool water dropped to half because of a defect in the plumbing.

ROC Inspector Jack Clark investigated Ms. Stephens’ complaint. On July 13, 2006, Inspector Clark conducted a jobsite inspection. On July 20, 2006, following the jobsite inspection, Inspector Clark issued a letter to the parties advising of the following: Upon filing a complaint with this agency it is incumbent upon the complainant to show proof of violation by a contractor. This agency cannot request a citation against a contractor’s license unless sufficient evidence is submitted or otherwise obtained to justify such action. Therefore, it appears appropriate that we close your complaint for the following reason(s): The homeowner failed to show that the contractor violated the contract. The homeowner had several complaint items to add to the complaint at the jobsite. This inspector attempted to explain that additional items need to be addended in writing and the contractor given an opportunity to inspect and correct the items prior to an inspection.

9. Inspector Clark testified at hearing regarding Ms. Stephens’ itemized complaints. Inspector Clark testified regarding the pool surface, that it is a pebble surface, however, it may not be Pebble Tec. Regarding the poor installation of the pool surface, Inspector Clark testified that it was impossible to make a determination of poor workmanship because the surface was covered with sand and silt. Regarding the pool equipment not functioning, Inspector Clark testified that he could not determine whether it was functioning properly. The light on the water feature had been removed prior to the inspection, so Inspector Clark could not determine if it had been installed to code. Inspector Clark testified that as to the drain location, the contract was silent on this point. As to the water level and plumbing defect, the pool was full at the time of inspection and the plumbing had been repaired. 10. Ms. Stephens testified that she did not attempt to add items to the complaint at the inspection. Ms. Stephens also testified that Inspector Clark did not request that she operate the pool equipment during the inspection. 11. Ms. Stephens submitted into evidence a diagram depicting that the drain was to be located on the bottom of the pool. See Exhibit 1. Ms. Stephens testified that the drain is completely ineffectual in its present location as the pop-up heads are supposed to push the debris to a drain located on the bottom of the pool. 12. Kevin Reames, a friend and neighbor of Ms. Stephens, who assists Ms. Stephens in the care and maintenance of the pool, testified that there is no circulation in the pool, not enough pressure to operate the pop-up heads, that Aqua Vista installed the drain on the side of the pool rather than the bottom because it was less work to do so, that seven to eight pipes are jutting from the ground and no one knows what purpose they serve, and that the pool surface is very inconsistent, is wavy, and has divots. 13. Ms. Stephens testified that she has been without a pool for close to two years and that the pool has to be completely re-done. Ms Stephens contacted Leslie’s Swimming Pool Supplies (“Leslie’s”) the company that referred Ms. Stephens to Aqua Vista, to request that Leslie’s assess her concerns with the pool. See Exhibit 3. Leslie’s addressed Ms. Stephens’ concerns in a letter dated July 14, 2006, and outlines in pertinent part “the specific items the Service Manager observed and diagnosed” as follows: 1. The main drain that was to be installed on the bottom of the lap pool was installed on the vertical wall. This pool is equipped with an in floor cleaning system, designed to blow debris into the main drain located on the floor of the pool. 2. Although this is not our area of expertise, from what we see in the field, the new pool surface does not appear to have the “Pebble Tech” process applied consistently throughout the pool. The appearance is sub-standard to other pools we see with this type of surface. 3. The pop-up heads do not pop up and are not moving the debris around the bottom of the pool. 4. Pipe left sticking up out of the ground at old equipment location. Id. 14. Due to Aqua Vista’s failure to appear for hearing, Aqua Vista did not present any controverting evidence. CONCLUSIONS OF LAW In this proceeding, Ms. Stephens bears the burden to prove, by a preponderance of the evidence, that Aqua Vista is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), and/or (A)(7) as charged by the ROC in its October 19, 2006 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Ms. Stephens met her burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications . . . in any material respect which is prejudicial to another without consent of the owner . . .” The credible evidence of record established that Aqua Vista departed from plans and specifications by failing to install the drain on the floor of the pool and by failing to install the “Pebble Tec” product as agreed upon. Therefore, the Administrative Law Judge concludes that Aqua Vista violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Aqua Vista with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Aqua Vista failed to perform its work at Ms. Stephens’ home in a professional and workmanlike manner as evidenced by the improper drain installation, failure of the cleaning system, and poor surface installation of a non-Pebble Tec product. Therefore, the Administrative Law Judge concludes that Aqua Vista violated A.R.S. § 32-1154(A)(3). 6. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Aqua Vista committed wrongful acts that substantially injured Ms. Stephens by failing to complete the project in a professional and workmanlike manner, and by departing from plans and specifications for the project (i.e., improper drain installation, failure to install a Pebble Tec product, and failure to install the pool surface in a workmanlike manner). Therefore, the Administrative Law Judge concludes that Aqua Vista violated A.R.S. § 32-1154(A)(7). 7. Based on the foregoing, it is appropriate for the ROC to impose discipline against Aqua Vista’s Class B-05 license. 8. Upon consideration of all of the facts and circumstances presented by this case, including Aqua Vista’s failure to appear for hearing and Aqua Vista’s suspended license status, the Administrative Law Judge concludes that the ROC should revoke Aqua Vista’s Class B-05 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Aqua Vista’s Class B- license shall be revoked on the effective date of the Order entered in this matter. 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 will be 40 days from the date of that certification.

Done this day, June 26, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] A review of the ROC‘s official records revealed that Aqua Vista’s contracting license was suspended on January 1, 2007 for lack of a qualifying party and on March 28, 2007 for lack of bond. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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