ALJDEC decisions subject to certification as final

07F-2482-ROC · Registrar of Contractors · 2008-04-03

STATE OF ARIZONA

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2008.

APPEARANCES: >The Complainant was represented by its attorney, John T. Gilbert, Esq. >The Respondent failed to appear.

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 instant hearing was duly scheduled on advance written notice duly sent to both parties. Although the start of the scheduled hearing was delayed for over thirty minutes to afford added time in which to make an appearance, the Respondent failed to appear through either an authorized employee or any proper legal representative.

2. Complainant’s uncontroverted evidence revealed that pursuant to a written contract, Respondent agreed to and did construct a swimming pool and spa on

Complainant’s property. The agreed cost price stated in the parties’ agreement has been fully paid by Complainant to Respondent.

3. Detailed plans and specifications, together with applicable engineering certifications as to structural components, had been developed by a previously retained pool building contractor who had been terminated before start of any jobsite work. The developed plans were not only presented to the municipal building authority for approval as part of the permit issuance process but also were delivered to Respondent for purposes of formulating its bid and its prepared contractual agreement. Such plans remained available during the Respondent’s on site construction. Under all the circumstances it is found and determined that the delivered plans and specifications were effectively incorporated within the contractual arrangements ultimately concluded between the parties. To hold otherwise would place most all critical details of the contemplated pool structure, including the previously certified engineering requirements, within the uncontrolled discretion of Respondent. A rough sketch or drawing of the pool layout may not properly be elevated to the status of valid plans and specifications.

4. The pool was to contain a Negative Edge feature that would enable water to flow over one side and down into a basin, to be re-circulated into the pool water. A spa was constructed adjacent to and forming part of the overall pool feature.

5. Complainant repeatedly attempted to communicate with Respondent in an effort to prompt its appropriate action in rectifying various problems that had been experienced after the pool was purportedly completed. Little or no adequate responses were made by Respondent until after the filing by Complainant with the Registrar of Contractors of the instant complaint originally consisting of 30 separate items. It did appear that approximately one-half of the complaint items were either belatedly rectified by Respondent even prior to the initial jobsite inspection or related to items that were no longer being pursued by Complainant.

6. Following a jobsite visit by the Registrar’s assigned Inspector, a written Corrective Work Order was issued to Respondent confirming the need for Respondent’s proper accomplishment by appropriate means of repairs or corrections of about 8 of the remaining complaint items relating to aspects of the construction. Additionally, although the Inspector declined to include the need to rectify six items of complaint that constituted deviations from the applicable plans due to their preparation by another contractor, the prior finding that such plans had been effectively incorporated into and had become an integral part of the agreement concluded between these parties, would serve to support determinations that added remedial work by Respondent was necessary.

7. More specifically, with respect to those items confirmed by the Inspector to constitute deficiencies, the following complaint items were still uncorrected or improperly corrected after Respondent had been afforded more than a reasonable time in which to accomplish the proper remedial measures.

a) The attempt to cause the pool equipment to be raised to the proper grade by placing blocks beneath the equipment was shown not to satisfactorily comply with applicable grading plans or to otherwise effectively remedy the problem.

b) The basin below the Negative Edge remains 8-inches out of square on its width.

c) The exterior wall on the East side of the Negative Edge basin remains 3-inches out of level.

d) The depth of the pool was substantially less than the 60- inch depth required by the plans as well as by the express terms of the written contract.

e) Water is not falling into the basin below the Negative Edge on the West side, thereby partially defeating the intended purpose of that feature.

The remaining enumerated complaint items identified by the Inspector to require appropriate correction by Respondent were admittedly rectified.

8. It must be held that Respondent has not substantially complied with the terms and conditions of the issued Corrective Work Order. The uncorrected or improperly corrected conditions reflect adversely upon Respondent’s workmanship.

9. Credible testimonial and documentary evidence tended to indicate that the following items of complaint constituted both material and prejudicial deviations or departures from applicable plans or specifications.

a) The height of the adjacent spa structure was shown to exceed the one- foot maximum specified in the plans.

b) The depth of the pool next to the spa was shown to exceed the three-foot maximum specified in the plans.

c) The slope of the Negative Edge surface was improperly installed backwards.

d) The drop from the top of the Negative Edge to the top of the basin below was shown to be significantly less than the nine- foot drop set forth in the plans.

e) The width of the exterior wall of the Negative Edge was shown to be less than the 12-inch width called for in the plans.

10. The above-described deviations from plans that had been developed in accordance with obtained engineering calculations and recommendations were further shown to be a likely cause or contributing cause to a degree of water leakage that continues to be experienced through the retaining walls below the pool structure. Such leakage was not only resulting in visible discoloring of the stucco wall surfaces but also was manifesting itself by the experiencing and incurring of significantly higher monthly water bill charges.

11. The property has been recently sold by Respondent to a third party who may, in the future as the successor-in-interest, elect to either ratify the proven deviations and uncorrected work items or seek to obtain appropriate remedial action by or on behalf of Respondent. In any event Complainant is not precluded from pursuing administrative remedies against Respondent based upon prior acts or omissions leading to work deficiencies and/or plan deviations that, in point of fact, had to be and were disclosed to the new owner as part of the purchase arrangements. At the very minimum, reasonable conditions in the Order of the Registrar to be entered herein would consist of the duty for Respondent to obtain and to pay for inspections, evaluations and certifications by a licensed engineer as to the structural integrity of the as-built pool, and also to undertake and complete effective measures to eliminate the ongoing leaking condition of the pool. It must be presumed that the property’s present owner and occupant would consent to any inspections, evaluations and remedial work performance that would serve to benefit his property.

12. Respondent’s ongoing course of unresponsive conduct or much delayed and often unsuccessful efforts to perform corrective work is found to reflect a disregard of the entitlements of Complainant under the parties’ agreement and arrangements as well as of its duties as a licensed contractor in this State. Additionally, such course of conduct reflecting Respondent’s inaction or ineffective action in addressing the valid items of complaint presently in issue over a prolonged time period is further determined

to constitute a wrongful (but not fraudulent) act resulting in substantial detriment to Complainant within the meaning of another provision of the State’s contracting laws charged hereunder to have been violated by Respondent.

13. Notwithstanding the foregoing, it must be held that the proof at the hearing demonstrating substandard work, non-compliance with the Inspector’s written directive, and unauthorized deviations from applicable plans and specifications, all relate to a purportedly completed pool and spa installation. No finding is warranted in this case that Respondent had abandoned a project or had refused to perform after having submitted a bid within the meaning and intent of the abandonment provisions of the State’s contracting laws.

14. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S.§32-1154(A) (2), (7), (23) and (3); namely, Rule R4-9-108, A.A.C. However, no violations by Respondent of the provisions of A.R.S. §32-1154(A)(1) were sufficiently proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B- license shall be revoked on the effective date of the Order entered in this matter.

It is further recommended that if written proof is filed with the Registrar on or prior to this Order’s effective date that Respondent has concluded arrangements for the

obtaining and delivery to Complainant of engineering inspections, evaluations and certifications, paid for in advance by Respondent, approving the as-built pool structure, and also has accomplished proper remedial work to eliminate the pool’s leaking condition, the above-provided license revocation shall not be imposed, but instead that Respondent’s Class B-05 license shall be actively suspended for a period of 25 days followed immediately by a period of disciplinary probation for 75 days. This alternative penalty shall commence, if at all, on the effective date of the Registrar’s Order.

It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $350.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Registrar’s Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such extended deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

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 forty (40) days from the date of that certification.

Dated: April 4, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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