ALJDEC decisions subject to certification as final

07F-L0119-ROC · Registrar of Contractors · 2007-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2007 APPEARANCES: Complainants Beltran and Betty Lopez appeared on their own behalf. Respondent James Ronald Schroeder, doing business as Waterwork Custom Pools, failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent James Ronald Schroeder, doing business as Waterwork Custom Pools (“Waterwork”), 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 September 10, 2007, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on October 16, 2007 at 8:15 a.m. On the date and at the time scheduled for the hearing, Complainants Beltran and Betty Lopez appeared on their own behalf. No one appeared on behalf of Waterwork. The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Waterwork, or the receipt of any information that would constitute good cause for Waterwork’s absence or delay. No such information was received. Therefore, the hearing proceeded in Waterwork’s absence. FINDINGS OF FACT Waterwork is the holder of a Class B-05 license (No. 211688) issued by the Registrar of Contractors (“ROC”).[1] In or about April 2006, The Lopez’ contracted with Waterwork for Waterwork to construct a pool, spa, and decking at their home located at 2415 East Sage Drive in Mohave Valley, Arizona. Waterwork began construction on the pool, spa, and deck, however, the Lopez’ had numerous concerns regarding the quality of Waterwork’s work. The Lopez’ contacted Waterwork to express their concerns, however, Waterwork did not address those concerns to the Lopez’ satisfaction. On or about September 19, 2006, the Lopez’ filed a complaint against Waterwork with the ROC. In their complaint, the Lopez’ alleged numerous deficiencies in the construction of the pool, spa, and deck, and further alleged that certain items for which they contracted were not provided by Waterwork. The Lopez’ specific items of complaint are set forth below in Finding of Fact Number 8. ROC Inspector Cliff Corlett investigated the Lopez’ complaint. On September 29, 2006, Inspector Corlett conducted a jobsite inspection. Present for the inspection were Mr. Lopez and James Schroeder. On October 3, 2006, following the jobsite inspection, Inspector Corlett issued a Corrective Work Order (“CWO”) under which the ROC gave Waterwork 15 days to take corrective action with respect to the complaint items as follows: All decisions herein are based on standard practices for similar work in the construction industry and/or the adopted Workmanship Standards for Licensed Contractors (WSLC). These standards cover performances of those construction items of major concern to the buyer for the first two years of occupancy, unless otherwise specified. COMPLAINT ISSUES IN UNDERLINED. 1. & 2. No pole holes in lounge area and on sides of pool as agreed. Registrar of Contractors (ROC)**** Respondent (R/P) agreed at meeting that these were to have been installed but were missed. RESPONDENT (R/P) SHOULD CORRECT BY APPROPRIATE METHODS.

3. Rough plaster. ROC**** Agree. R/P agreed at job site inspection (J/S) that plaster was poorly done. R/P SHOULD CORRECT BY APPROPRIATE METHODS.

4. Lounge area larger than agreed to (drawings). ROC**** Agree. Drawings show a lounge area smaller than what R/P built. R/P SHOULD CORRECT BY APPROPRIATE METHODS.

5. Step is too small for lounge area. ROC**** Step exceeds the minimum adopted standards for depth and minimum number of square inches. NO CONTRACTOR (CTR) ACTION REQUIRED.

6. Salt system not hooked up for two weeks. ROC**** Salt system appeared to be working at time of J/S. NO CTR. ACTION REQUIRED.

7. Auto pool cover not installed. ROC**** Installed at time of inspection. NO CTR. ACTION REQUIRED.

8. Concrete guys left mess in back yard. ROC**** Concrete splatter on stuccoed walls and block walls was noted. R/P SHOULD CORRECT BY APPROPRIATE METHODS.

9. &10. Drinking and fighting. ROC**** Not workmanship issues for this office.

11. Plywood in skimmer is falling out. ROC**** Resolved prior to J/S.

12. Gate left open. ROC**** Non ROC issue.

13. Heater in spa not working. ROC**** Heater appeared to be working at J/S. NO CTR. ACTION REQUIRED.

14. Plaster lifting and cracking in deep end. ROC**** Agree R/P SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS.

15. Jets in spa not working properly. ROC**** Ctr. Agreed at J/S to correct.

16. Tile lifting at spa area. ROC**** No loose tile was noted at J/S. NO CTR. ACTION REQUIRED (note, ctr. Responsible for tile failure for two years)

17. Plate in shallow end of pool. What is it? ROC**** Plate was plaster guard over a water return inlet. This had been removed prior to J/S. NO CTR. ACTION REQUIRED.

18. Lights get very hot. ROC**** Pool/Spa lights are factory sealed underwater lights subject to manufacturers warranty. Nothing indicated that there was anything abnormal about the lights. NO CTR. ACTION REQUIRED.

19. Kool decking problems, too thin, too thick, slippery. ROC**** Deck had been recoated prior to J/S. Deck coating appears to be acceptable.

20. Do not like material used for slide. ROC**** Slide is a manufactured product. Ctr. Did not manufacture. NO CONTRACTOR ACTION REQUIRED.

21. Lights are plain white not the fiber optic discussed. ROC**** Contract appears to call for a standard light installation. NO CTR. ACTION REQUIRED.

22. The sidewalks and pool are not level. ROC**** The concrete deck was noted to have some humps in it near the deco drain on the slide side of the pool in excess of acceptable standards. CTR. SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE METHODS. Pool floor not flat/level. ROC**** Pool shells and plaster linings are a hand applied, free formed surface and often have irregularities. Unless the irregularities are so pronounced that they can be seen from a standing position (out of the pool) under normal daylight conditions then they are considered acceptable by industry standards. NO CTR. ACTION REQUIRED.

23. Dirtworx claim not paid. ROC**** Complainant (C/P) stated this is resolved.

24. Contract completion date 7-17-06. ROC**** Not a workmanship issue that this Inspector can resolve.

25. Deck coating to have a second color around pool as an accent coping color. ROC**** CTR. Agreed to install second coping color.

26. Blower just sitting on pipe. ROC**** Acceptable. NO CTR. ACTION REQUIRED.

27. Pool turning green because salt system not working. ROC**** Salt system was working at J/S. NO CTR. ACTION REQUIRED.

28. Extra jets in spa not working properly. ROC**** CTR. Agreed to correct jet flow.

29. & 30. & 31. Shotcrete guys left a mess to clean up. Concrete guys left a mess. Kool deck guys left a mess. ROC**** Mess cleaned up prior to J/S except splatter on stucco and block walls. (see # 8 above)

32. No permit? ROC**** Job was county permitted.

33. Customer needs copy of warranty cards and equipment manuals. ROC**** CTR. Agreed to provide.

34. CTR. Left a gallon of muriatic acid on the grounds knowing we have children. ROC**** Not a workmanship issue that this Inspector can resolve.

9. Inspector Corlett testified at hearing that he conducted a pre- hearing inspection on October 10, 2007, for which Mr. Lopez was present. Inspector Corlett testified that Waterwork has not complied with the directives contained in the CWO, specifically items 8, 15, 19, 22, 25, 28, 29, 30, and 31. Regarding item number 3, Inspector Corlett testified that Waterwork re-plastered the pool, and that it looks “fine” during the day, standing outside of the pool. 10. Mr. and Mrs. Lopez testified that Waterwork re-plastered only the pool, not the spa, and that the pool surface remains unacceptable because it contains numerous rough areas and jagged edges that can be felt when walking in the pool. Regarding the permit, Mr. Lopez testified that it was not obtained. As to the lounge area, the Lopez’ testified that it is discolored and sits approximately two inches above the rest of the pool decking. 11. Mrs. Lopez testified that one of Waterwork’s employees, Vince Perry, threatened Mr. Lopez with physical violence and the Lopez’ filed a report of the incident with the Sheriff’s Office. As such, the Lopez’ requested that Waterwork not be permitted to perform any further work at their home, and that another licensed contractor properly complete the corrective work. 12. Due to Waterwork’s failure to appear for hearing, Waterwork did not present any controverting evidence. CONCLUSIONS OF LAW In this proceeding, the Lopez’ bears the burden to prove, by a preponderance of the evidence, that Waterwork is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), (A)(13), and/or (A)(23) as charged by the ROC in its May 30, 2007 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 the Lopez’ met their burden of proof as to all of the ROC’s five 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 Waterwork departed from plans and specifications by failing to install the pole holes and by constructing the lounge area larger than as specified on the plans. Therefore, the Administrative Law Judge concludes that Waterwork 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 Waterwork 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 Waterwork failed to perform its work at the Lopez’ home in a professional and workmanlike manner as evidenced by the numerous deficiencies, including but not limited to the rough plaster, the cracking and lifting plaster, and the uneven pool deck. Therefore, the Administrative Law Judge concludes that Waterwork violated A.R.S. § 32-1154(A)(3). 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 Lopez’ did not address this alleged violation. However, a copy of Waterwork’s Written Answer to Citation and Complaint, as well as other correspondence and invoices, are contained in the case file. Those documents do not contain the letters “ROC”, nor do they contain Waterwork’s license number. In view of the foregoing, the Administrative Law Judge concludes that Waterwork is in violation of A.R.S. § 32-1154(A)(13). 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 Waterwork a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Waterwork failed to substantially comply with the CWO without valid justification. Therefore, the Administrative Law Judge concludes that Waterwork violated 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 on the weight of the credible evidence presented at hearing, that Waterwork committed wrongful acts that substantially injured the Lopez’ by failing to complete the project in a professional and workmanlike manner, by departing from plans and specifications for the project, and by failing to comply with the CWO. Therefore, the Administrative Law Judge concludes that Waterwork violated A.R.S. § 32-1154(A)(7). 9. Based on the foregoing, it is appropriate for the ROC to impose discipline against Waterwork’s Class B-05 license. 10. Upon consideration of all of the facts and circumstances presented by this case, including Waterwork’s failure to appear for hearing and Waterwork’s suspended license status, the Administrative Law Judge concludes that the ROC should revoke Waterwork’s Class B-05 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Waterwork’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, October 30, 2007. ______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of October, 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 Waterwork’s contracting license was suspended on October 1, 2007 for nonrenewal. 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