ALJDEC decisions subject to certification as final

06F-M2303-ROC · Registrar of Contractors · 2007-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2007 APPEARANCES: Complainant Adam Rasner appeared on his own behalf. Kevin Sherlock, Esq. represented Respondent Transcend Developers, Inc., doing business as Legacy Pools and Spas. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Transcend Developers, Inc., doing business as Legacy Pools and Spas (“Legacy”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. Procedural Matter After the presentation of Complainant Adam Rasner’s case, counsel for Legacy made a motion for a directed verdict. The Administrative Law Judge denied Legacy’s motion, advising the parties that the matter should proceed through the entire evidentiary hearing process in order that a full determination on the merits be made. FINDINGS OF FACT 1. Legacy is the holder of a Class B-05 license (No. 158221) issued by the Registrar of Contractors (“ROC”). John Stallone is Legacy’s President. 2. On or about June 14, 2005, Complainant Adam Rasner contracted with Legacy for Legacy to “resurface pool with pebble, replace waterline tile Grade A; pour 500 sq. ft. new concrete; 758 sq. ft. new faux flagstone; new pool light Sam Light; new 40 sq. ft. real rock waterfall with diving rock (includes new pump).”[1] See Exhibit 1. The contract price was $15,405.00, not including tax. Id. Mr. Rasner paid Legacy $5,400.00 in cash that day. Id. 3. Within approximately two weeks, Legacy began its work at Mr. Rasner’s home. Mr. Rasner paid Legacy in full upon completion of the work. Shortly after Legacy completed its work at the Rasner residence, Mr. Rasner began to experience a leak at the skimmer and some cracking of the deck. Mr. Rasner contacted Legacy, however, he was dissatisfied with Legacy’s response to his concerns. Consequently, on May 22, 2006, Mr. Rasner filed a complaint against Legacy with the ROC alleging the following: week after completing the work, the cool deck had cracks in it and has now completely seperated (sic) from the old deck. My skimmer that Legacy repaired is leaking causing the new deck to rise and crack! Legacy will not return my calls or come out to fix it!

4. ROC Inspector Jack Clark investigated Mr. Rasner’s complaint. 5. On July 18, 2006, Inspector Clark conducted a jobsite inspection. Mr. Rasner was present for the inspection. Legacy did not attend the inspection. 6. On July 19, 2006, following the jobsite inspection, Inspector Clark issued a Corrective Work Order (“CWO”) under which the ROC gave Legacy days to take corrective action as follows: Complaint 1 The new pool deck has cracks and has separated from the original deck The new pool deck has heaved at least 1” all around the pool. The contractor is to determine the cause and correct by the appropriate means.

Complaint 2 The skimmer may be leaking If the heaving was caused by the skimmer leaking, one would expect the heaving to be concentrated near the skimmer or at least worse in that area. If the skimmer is leaking, it should be repaired as part of complaint 1.

(Emphasis in original.)

7. In order to comply with the directives contained in the CWO, Legacy retained Getty Engineering Services, Inc. (“Getty”), a mechanical, civil, structural and forensic engineering firm to determine the cause of the heaving. Paul Getty, President of Getty and a registered civil and structural engineer, conducted an initial inspection of the jobsite on August 3, 2006. Mr. Getty determined that leak detection should be the first course of action. 8. On August 11, 2006, American Leak Detection performed its testing of the pool plumbing system. Mr. Getty noted that “the skimmer housing had a distorted configuration; most likely due to deterioration of the original pool shell construction.” See Exhibit 3, page 5. 9. The leak detection testing revealed the following: Both the main drain and the skimmer plumbing tested to be without leakage, even with a liquid dye material being used to observe for leakage. The skimmer was determined to possibly be leaking at the crack due to an inadequately performed repair. The leak detection report stated that “upon pressure testing all pool plumbing lines individually, all lines held pressure.”

See Exhibit 3, pages 5 and 6. 10. Mr. Getty determined, based upon the results of the leak detection testing, that a “loss of soil support has caused the damages rather than expansive soil.” See Exhibit 3, page 6. Mr. Getty observed that “this is consistent with the physical evidence observed on site: there is visible erosion around the new deck, and there is similar visible soil loss around the NW rear corner of the residence, along with associated past soil settlement damages to the home’s block bearing walls.” Id. 11. Mr. Getty opined: The loss of soil support for the new pool deck was brought on by rainfall conditions and the erosion/consolidation of the soil surrounding the concrete. An unstable soil condition at the property has been present for some time. This is substantiated by the pre- existing settlement cracking damages to the residence wall, the visible depressed topography of the rear yard, and the effects of surface/ground water not being able to drain away. Once the soil instability began allowing settlement around the new concrete deck perimeter, the interface between the old and new deck juncture developed a vertical separation.”

Id. at 7.

12. Mr. Getty concluded “within a reasonable degree of probability”, based upon inspection observations, on-site testing, and an analytical evaluation of damages, the following: Heavy rains have affected the soil topography of the rear yard of the Rasner residence over the course of a year’s time. The attached weather research substantiates that several occasions of heavy rainfall have occurred since the time frame of completion of work by Legacy Pools; As a result of unlandscaped soil topography, surface water erosion, and ground water induced consolidation of soil, the soil support was lost for the exterior perimeter of the new pool deck construction; Consequently, the outer edge of the new pool deck settled downward and raised up the inner perimeter of the new concrete deck – relative to the elevation of the original concrete deck.

See Exhibit 3, pages 7 and 8. 13. Mr. Getty further concluded that “if the rear yard’s topography had been graded for proper drainage and landscaped with granite mulch (for example), that the pool deck damages could have been avoided.” See Exhibit 3, page 8. Mr. Getty testified at hearing consistent with the findings and conclusions contained in his report. Mr. Getty further opined that the concrete decking was properly installed by Legacy. 14. Inspector Clark conducted a pre-hearing inspection on March 27, 2007. Inspector Clark testified that the outer edge of the new deck is essentially level with the old pool deck, however, the inner edge of the new deck is raised approximately 2 inches. Inspector Clark further testified that the deck is heaving uniformly around the entire perimeter of the pool. Inspector Clark opined that the conclusions contained in the soil engineering report are not supported by his observations at the on- site inspections. Inspector Clark acknowledged that he was puzzled by what he saw at the inspections and that this is the first time he has observed heaving consistently around the perimeter of a pool. 15. Brandon Mollett, Legacy’s sales manager, testified at hearing that Mr. Rasner contacted Legacy in June or July of 2005 to perform the work that Legacy was contracted to perform. When Mr. Mollett inspected the existing pool, the pool was empty and had been for approximately six months. Mr. Mollett testified that there was no mention of the skimmer and nothing in the contract addresses any work to be performed to the skimmer. Mr. Mollett credibly testified that Mr. Rasner expressed a desire to have Legacy perform its work as soon as possible because Mr. Rasner wanted to have rear yard landscaping installed. 16. John Stallone, Legacy’s President, oversees construction coordination and management for Legacy. Mr. Stallone testified that he was personally involved in the Rasner project and that the scope of Legacy’s work included re-surfacing the interior of an empty pool, and to add a concrete deck to an existing deck and re-surface the entire deck. Mr. Stallone testified that he was present at the jobsite prior to the concrete being poured, as well as after, and that the preparation work and installation of the concrete was properly performed. Mr. Stallone further testified that Legacy did not perform any work to the skimmer or the pool plumbing, and that none of Legacy’s work had any impact on the skimmer or pre-existing plumbing. Mr. Stallone further credibly testified that Mr. Rasner told him that he wanted the pool completed as soon as possible in order to have landscaping installed. 17. Mr. Stallone testified that two to three days after Legacy completed its work, Mr. Rasner contacted Mr. Stallone to advise that when filling the pool with water, the water would not fill past a certain point. Mr. Stallone went to the Rasner home to investigate and noticed that water was emanating from the skimmer. He suggested to Mr. Rasner that Mr. Rasner patch the skimmer as a temporary fix and gave him some patching material that Mr. Stallone had in his truck. Mr. Stallone credibly testified that he specifically advised Mr. Rasner that the patch was a “band-aid” and the skimmer would need to be replaced. Mr. Stallone further credibly testified that Legacy did not repair the skimmer or patch the skimmer. Mr. Stallone credibly testified that it appears that the skimmer has been patched more than once, as it appears that there is more than one layer of patch material present. Mr. Stallone also testified that the plastic of the skimmer is bowed and that ground shifting or heat could have warped the skimmer. 18. Mr. Stallone testified that after receiving the CWO, Legacy retained the services of Mr. Getty in order to determine what was causing the heaving of the deck, whether Legacy was responsible for the cause, and how the issue could be corrected. Due to the fact that Mr. Getty concluded that the separation of the pool deck is not attributable to Legacy’s work, Legacy did not take any further action and contends that it has complied with the CWO. 19. At hearing, Mr. Rasner acknowledged that Legacy is not responsible for the skimmer leak or patch, however, he contended that Legacy is responsible for the heaving of the pool deck. Mr. Rasner expressed his dissatisfaction with Legacy’s work and asserted that he did not receive a quality product. 20. The Administrative Law Judge finds, based upon the credible evidence of record, that Legacy properly performed its work at Mr. Rasner’s home and is not responsible for the heaving of the pool deck. The evidence of record established that the pool deck is heaving due to Mr. Rasner’s failure, over the course of approximately a year’s time following the installation of the deck, to install rear yard landscaping, causing surface water erosion and ground water induced consolidation of soil, resulting in loss of soil support for the exterior perimeter of the new pool deck. CONCLUSIONS OF LAW In this proceeding, Mr. Rasner bears the burden to prove, by a preponderance of the evidence, that Legacy is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(23) as charged by the ROC in its December 1, 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 Mr. Rasner has failed to meet his burden of proof as to all three of the ROC’s charges. 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 Legacy 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 that the credible evidence of record established that Legacy properly performed its work at Mr. Rasner’s home and that the heaving of the pool deck is not attributable to Legacy, but rather a lack of landscaping. Therefore, the Administrative Law Judge concludes that Legacy is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Legacy a CWO directing it to determine the cause of the pool deck heaving and correct by appropriate means. The evidence of record established that Legacy retained the services of Mr. Getty, a civil and structural engineer, to investigate the cause of the heaving. Mr. Getty concluded that the cause of the heaving was not attributable to any workmanship deficiencies on the part of Legacy. As such, the Administrative Law Judge concludes that Legacy is in compliance with the directives contained in the CWO and is not in violation of A.R.S. § 32- 1154(A)(23). 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 upon the credible evidence of record, that Legacy did not commit any wrongful acts that substantially injured Mr. Rasner. Therefore, the Administrative Law Judge concludes that Mr. Rasner did not establish that Legacy violated A.R.S. § 32-1154(A)(7). Based on the foregoing, no grounds exist to impose discipline against Legacy’s license. The ROC’s Citation in Case Number M06-2303, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Legacy’s license, and that the Citation issued in Case Number M06-2303, 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 will be 40 days from the date of that certification. Done this day, April 11, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The contract provision regarding the waterfall was subsequently removed, and in its place, Mr. Rasner received approximately 550 extra square feet of concrete decking with faux flagstone finishing.

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