ALJDEC decisions subject to certification as final

06F-T0237-ROC · Registrar of Contractors · 2006-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6th, 2006; 1:30 p.m. APPEARANCES: Complainant, Ms. Melinda Kaye Lockhart, represented herself. Respondent, Falcon Pools, Inc., was represented by Mr. D. Charles Freitas, President. Respondent, Santa Rita Landscaping, Inc., was represented by Mr. Sean Brearcliffe, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston ___________________________________________________________________ The administrative hearing of these consolidated matters was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent Falcon Pools, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-06 License number 060025. 2. Respondent, Santa Rita Landscaping, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-21 License number 067801. 3. Complainant, Ms. Melinda Kaye Lockhart, is a homeowner in Vail, Arizona, who purchased her newly constructed home in 2004. These Complaints concern the swimming pool work performed by Respondent Falcon Pools, Inc., (“FP”) and the landscaping work performed by Respondent Santa Rita Landscaping, Inc. (“SRL”) at Complainant’s home in 2004. 4. The general contractor for the construction of the home was ITC Construction, who is not a party to these cases. As the general contractor on the job, ITC was responsible to perform proper site preparation, including the grading of the lot. ITC did perform the lot grading, however, SRL contends that ITC failed to account for the presence of expansive soil in Complainant’s lot, and remediate that condition appropriately. SRL contends that that failure is the real cause of Complainant’s problem of which she now complains. 5. Complainant’s problem is that shortly after the swimming pool and pool deck were installed by FP and the landscaping performed by SRL, the pool deck on one end began to separate from the earth below, owing either to the soil beneath the decking (the evidence is conflicted here) heaving upward, or settling downward. 6. There is no substantial evidence of record offered by any party tending to prove that the pool decking installed by FP was defective or defectively installed. 7. The evidence is clear that part of the landscaping work performed by SRL included its construction of a dirt mound piled up and onto the Complainant’s block perimeter wall. This mound effectively blocked a number of weep holes located at points at the base of the wall, at the end of the pool decking that was separating. Weep holes are constructed in order to allow for the free flow of runoff water from the lot and through them. 8. The evidence is also clear that shortly after SRL performed the landscaping work, one point in the plastic irrigation pipe which SRL had buried under the lot next to the end of the pool decking which began to heave or settle, sprung a leak. 9. After these conditions arose, Complaint summoned FP and SRL to the job site to discuss the problem. SRL voluntarily removed the dirt mound and repaired the leak. 10. Receiving no cooperation from any contractor towards repairing the damage to her pool decking, Complainant filed these two Complaints with the Arizona Registrar of Contractors. Complaint T06-0134 has FP as Respondent, and Complaint T06-0237 has SRL as Respondent. The Complaints were assigned to Registrar of Contractors Inspector Edward P. Monahan for inspection. By the time he was called to the scene for a job site inspection, SRL had performed its additional, remedial work, and there was nothing for Inspector Monahan to view besides the obvious separation of the deck from the ground. 11. SRL, at the administrative hearing, based most of its case on a shifting of blame to the general contractor for failing to properly account for and remediate the condition of expansive soil in the lot. Expansive, or clayey, soil will expand when wetted. 12. The only objective evidence of the possibility of the presence of any expansive soil in Complainant’s lot is the soil engineer’s report, for the subdivision as a whole. There is no soil engineer’s report for Complainant’s lot. The soil report reveals that those performing the analysis took several core samples for analysis, but the sample taken closest to Complainant’s lot was six lots away, which could have been as much as 1,200 linear feet from Complainant’s lot. 13. There is a conflict in the evidence as to whether the separation of the deck from the soil underneath was an effect of the deck being heaved upward by expansive soil, or the soil below settling downward from being overly saturated with water. 14. SRL’s Vice President testified unconvincingly at the hearing that the weep holes he had blocked in his work were not functioning weep holes, and that the grade of the lot was so that water would not run in a direction to cause the damage suffered by Complainant. He also testified unconvincingly as to many possible reasons why irrigation pipe might leak, when the crux of the matter was that it was his pipe, and it did leak. One may easily suggest many possibilities without proof. 15. Notice is taken of SRL’s prior license record with the Arizona Registrar of Contractors.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. FP and SRL, each, in the applicable Citation and Complaint, is charged with possible violations of A.R.S. 32-1154.A.3, and 7. 3. There is insufficient evidence to conclude that FP in the facts of this case committed any wrongful or fraudulent act, or performed below workmanship standards, in violation of the cited statutes. 4. The greater weight of evidence did prove that SRL did violate A.R.S. 32-1154.A.3 in this case, by the poor landscaping workmanship in violation of A.A.C. R4-9-108. 5. There is no evidence of any violation of A.R.S. 32-1154.A.7 by SRL independent of the violation of A.R.S. 32-1154.A.3.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint No. T06-0134 be dismissed on the effective date of this Order (40 days after the date of service shown on the Registrar’s certification on the Order). It is further recommended that Respondent Santa Rita Landscaping, Inc.’s Class C-21 License number 067801 be suspended until such time as the Respondent Santa Rita Landscaping, Inc. corrects by appropriate means, or hires other appropriately licensed contractors to correct by appropriate means, the Complainant’s problem with the pool decking. It is further recommended that if the Registrar receives written proof that Respondent Santa Rita Landscaping, Inc. has performed or caused to be performed the above-mentioned corrective work, on or before the effective date of this Order (40 days after the date of service shown on the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint T06-0237 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 7th, 2006.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488