ALJDEC decisions subject to certification as final

07F-G1238-ROC · Registrar of Contractors · 2007-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2007 APPEARANCES: Complainants Jerry and Lisa Woodgate appeared on their own behalf. Gary Smith, Esq. represented Respondent Diving Lady Pools of Arizona, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Diving Lady Pools of Arizona, Inc. (“Diving Lady”) 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: FINDINGS OF FACT Diving Lady is the holder of a Class KA-05 license (No. 174235) issued by the Registrar of Contractors (“ROC”). Ryan Ripley is Diving Lady’s qualifying party. On August 3, 2005, Complainants Jerry and Lisa Woodgate contracted with Diving Lady for Diving Lady to construct a pool at their residence. The contract price was $26,749.00. The Woodgates have paid Diving Lady in full. The pool construction was completed in July 2006. Shortly thereafter, the Woodgates had several areas of concern which they brought to Diving Lady’s attention. Specifically, the Woodgates complained of the following: a. The tile was chipped, installed unevenly, and was the wrong size (3” x 3” tile had been installed instead of 6” x 6” tile); b. The fiber optics were not as portrayed to the Woodgates by Diving Lady’s salesperson, and the vessel from which the fiber optics emanated had been changed by Diving Lady from what the Woodgates contracted without the Woodgates’ consent; c. The Woodgates were “talked out” of a pop-up cleaning system by Diving Lady’s salesperson, and the Jandy cleaning system that was installed did not clean the pool well; d. The pool light was too dim; e. The Woodgates advised Diving Lady’s salesperson that they wanted a salt water pool, however, Diving Lady installed a chlorinated pool; and f. All of the pool features cannot be utilized at the same time.

4. The Woodgates testified at hearing that the Diving Lady manager to whom they had expressed their concerns had verbally agreed to rectify all of the outstanding issues during the month of January 2007. Diving Lady failed to do so. Neither the salesperson who sold the Woodgates their pool, nor the manager who agreed to address their concerns, is currently employed by Diving Lady, and the new manager disputed that an agreement had previously been reached. Consequently, on February 1, 2007, the Woodgates filed a complaint against Diving Lady with the ROC. In their complaint, the Woodgates alleged that Diving Lady had verbally agreed to the following and failed to follow through with the agreement: a. Replace tile with 6” x 6” tile; b. Remove all fiber optics; c. Replace fiber optic pool light with a large regular color pool light (e.g., jazz light); d. Install two wok pots (water features) – of our choice; e. Install tile pieces at edge of all steps (can’t see the steps making them very dangerous); f. Reimburse approximately $1,500.00 for fiber optics + additional monies to cover for pool vacuum ($520.78); and g. Any cleaning or sandblasting needed following draining of pool and installation of tile and light, etc.

The Woodgates further alleged the following in their complaint:

a. Diving Lady sold them a cleaning system that did not function as intended as it did not clean the pool properly; Diving Lady attempted to resolve the problem by adding a suction line and agreeing to upgrade the vacuum; the Woodgates purchased the vacuum after two weeks of waiting for Diving Lady to supply one, and were told by Diving Lady that Diving Lady would reimburse the Woodgates for the vacuum; Diving Lady has not reimbursed the Woodgates for the vacuum; b. Diving Lady misrepresented the fiber optics that the Woodgates were to receive; c. The Woodgates purchased 6” x 6” tile and received 3” x 3” tile; d. The Woodgates expressed to Diving Lady that they wanted a salt water pool and did not realize until two weeks prior to the final inspection that Diving Lady installed a chorine pool; e. The Woodgates wanted an automated system to control the various pool functions; Diving Lady advised that there is no such system, yet the Woodgates’ neighbors were sold such a system by Diving Lady; f. Diving Lady sold the Woodgates an ozonator that was unnecessary; g. The Woodgates requested a 90’ perimeter pool and received an 80’ perimeter pool; h. Pool construction did not commence as soon as Diving Lady promised the Woodgates it would; and i. Diving Lady failed to clean up after construction.

5. The Administrative Law Judge addresses each of the Woodgates’ items of complaint in turn. Tile 6. The Woodgates’ filed complaint relates solely to the size of the tile installed, and not to any workmanship deficiencies. As such, the Administrative Law Judge advised the parties that the scope of the hearing regarding this item of complaint would be limited to the size of the tile. Mrs. Woodgate testified that she and her husband chose a tile displayed as a 3” x 3” tile and specifically inquired as to whether it was available in a 6” x 6” size. Mrs. Woodgate testified that the Woodgates were advised by Diving Lady’s salesperson that they would be receiving 6” x 6” tile. 7. Mr. Ripley testified that the tile is displayed in the size in which it is available and that the Woodgates received the tile for which they contracted, as the contract specifies “one (1) row continuous standard ceramic tile around pool perimeter: 6” x 6” “, and that the Woodgates’ first choice for tile selection as specified in the contract is a 3” x 3” tile. See Exhibit 4, page 2. Mr. Ripley testified that the dimension 6” x 6” refers to a pattern, not the size of the tile. 8. The Administrative Law Judge finds, based on the weight of the evidence presented at hearing, that the Woodgates contracted for a 6” x 6” pattern of tile, not 6” x 6” tile. Cleaning System 9. Mrs. Woodgate testified that when the Woodgates met with Diving Lady’s salesperson, the Woodgates requested a pop-up cleaning system as they had previously had a pool with such a system and were happy with the way in which it performed. Mrs. Woodgate testified that the salesperson convinced the Woodgates to purchase a Jandy cleaning system by telling them it was “the best thing” they could purchase and that it was “far superior” to a pop-up system. The Woodgates agreed to a Jandy system, but were dissatisfied with its cleaning capabilities as it “just blows dirt around”. Diving Lady agreed to upgrade the system after the Woodgates expressed their dissatisfaction. Diving Lady added a suction line, however, Mrs. Woodgate testified that the system still does not clean the steps, benches, or the walls. 10. The Woodgates credibly testified that Diving Lady had initially agreed to reimburse them for an upgraded vacuum as the Woodgates were compelled to purchase one themselves due to Diving Lady’s advisement to them that they were on backorder and the Woodgates had already waited weeks for Diving Lady to provide a new vacuum. The Woodgates purchased the vacuum from Leslie’s Pool Supplies at a cost of $520.78. See Exhibit B. The Woodgates testified that now Diving Lady will not reimburse them stating that the expenditure was not approved by its corporate office. 11. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that the Woodgates are entitled to be reimbursed by Diving Lady for the cost of the new vacuum as they could not have been expected to wait indefinitely for a proper cleaning system for their pool. Salt Water Pool 12. Mrs. Woodgate testified that the Woodgates expressed to Diving Lady that they desired a salt water pool, and that they were unaware that a chorine pool had been installed until the plaster phase of construction. At hearing, the Woodgates acknowledged that the contract does not specify a salt water pool, but rather a chorine pool, and further that a salt water pool would have been more expensive and they did not pay additional monies for a salt water pool. Pool Light and Fiber Optics 13. Mrs. Woodgate testified that they are dissatisfied with the degree of illumination within the pool, as the interior pool light does not illuminate the entire pool, and that Diving Lady should have installed more than one light. 14. A review of the parties’ contract indicates that one pool light is specified. See Exhibit 4, page 2. 15. The Woodgates testified at hearing that the fiber optics as installed by Diving Lady are “ridiculous” and look like two flashlights protruding from a waterfall. The Woodgates further asserted that the fiber optics as installed are not as portrayed in the sales video shown by Diving Lady or in the sales brochure provided by Diving Lady. See Exhibit A. The Woodgates contended that they purchased a fiber optic water feature pot and that Diving Lady substituted the pot without their consent. The Woodgates requested its removal and Diving Lady honored their request. The Woodgates requested reimbursement for the amount paid for the fiber optics or for Diving to replace them with “wok pots” similar to their neighbors. See Exhibit 18. 16. Mr. Ripley testified that when the Woodgates contracted for their pool construction, there was only one type of vessel available to house the fiber optics, and that customers did not have a choice as to the type of vessel. Mr. Ripley further testified that after the Woodgates entered into the contract, but prior to its installation, the manufacturer of the vessel recalled it due to a material defect causing the vessel to rupture. As such, Diving Lady replaced the vessel that the Woodgates had viewed at Diving Lady’s office, with the replacement vessel provided by the manufacturer. 17. Mr. Ripley further testified that on January 15 or 16, 2007, at 6:30 a.m. when it was pitch dark, he personally viewed the fiber optic light performance and opined that the light was functioning properly in that he could see the steps and main drain. Mr. Ripley testified that fiber optic lights do not illuminate in the same manner as a standard pool light. 18. Mr. Ripley testified that the Woodgates contracted for one fiber optic strand light and had they contracted and paid for more strands, the light would have been brighter. 19. As to the remainder of the items of complaint, the Woodgates did not present any probative or substantial evidence regarding those items. 20. Diving Lady argued at hearing that the Woodgates signed and initialed the contract that specifies the following: Buyer (owner) acknowledges that he has read the contract in its entirety and received a legible copy of this contract including the terms and conditions contained on the reverse side thereof, and that all representations made orally are included herein, and that no oral representations have been made except those specifically included herein. See Exhibit 4, page 1.

This contract constitutes the entire contract and the parties are not bound by any oral expression or representation by any agent of either party purporting to act for or on behalf of either party or by a commitment or arrangement not specified in the contract. Id at 4.

CONCLUSIONS OF LAW In this proceeding, the Woodgates bear the burden to prove, by a preponderance of the evidence, that Diving Lady is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(2), (A)(7), (A)(13), and/or (A)(16) as charged by the ROC in its June 6, 2007 Citation and Complaint. See Arizona Administrative Code 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 the Woodgates met their burden of proof as to one of the ROC’s five charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The evidence of record failed to establish that Diving Lady abandoned the contract or refused to perform, as the evidence established that Diving Lady completed the construction of the pool. Therefore, the Administrative Law Judge concludes that Diving Lady did not violate A.R.S. § 32-1154(A)(1). 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 evidence of record failed to establish that Diving Lady departed from plans and specifications, as the evidence of record established that the Woodgates received what they contracted for. Regarding the vessel for the fiber optics, because it was recalled due to a manufacturing defect, and replaced with a substitute provided by the manufacturer, Diving Lady cannot be held liable for such change. Therefore, the Administrative Law Judge concludes that Diving Lady did not violate A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include their contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement would be applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. The Woodgates did not address this alleged violation. In view of the foregoing, the Administrative Law Judge concludes that Diving Lady did not violate A.R.S. § 32-1154(A)(13). Under A.R.S. § 32-1154(A)(16), a contractor is subject to discipline for “false, misleading or deceptive advertising whereby any member of the public may be misled and injured.” The evidence of record was insufficient to establish that Diving Lady falsely, misleadingly, or deceptively advertised regarding the fiber optic lighting. Therefore, the Administrative Law Judge concludes that Diving Lady did not violate A.R.S. § 32-1154(A)(16). 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 Diving Lady committed a wrongful act that substantially injured the Woodgates by failing to reimburse them for the vacuum they were compelled to purchase because Diving Lady failed to provide one within a reasonable period of time. Therefore, the Administrative Law Judge concludes that Diving Lady violated A.R.S. § 32- 1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Diving Lady’s Class KA-05 license. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Diving Lady’s Class KA-05 license. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Diving Lady’s license without providing a condition to reduce or eliminate same. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Diving Lady’s Class KA-05 license subject to the condition that Diving Lady can avoid such suspension by reimbursing the Woodgates the cost of the vacuum in the amount of $520.78.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On of the effective date of the Order entered in this matter, Diving Lady’s Class KA-05 license (No. 174235) shall be suspended unless the ROC receives written proof that Diving Lady has reimbursed the Woodgates the amount of $520.78, representing the cost of the vacuum. If the ROC receives written proof that Diving Lady has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. G07-1238 shall be closed. 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, November 14, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 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