ALJDEC decisions subject to certification as final

07F-M0206-ROC · Registrar of Contractors · 2007-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19,2007 APPEARANCES: Michael Wales, an attorney, and Russell Bergstedt, Jr., on behalf of Complainant; Michael DeFine, an attorney, and Scott Klarkowski on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________ On July 27, 2006, a Complaint was filed with the Registrar of Contractors (ROC) alleging that a water feature constructed in Complainant’s backyard by Respondent had cracks in the cement, was leaking water and deviated substantially from the contract plans. On March 12,2007, a Citation was filed by the ROC alleging that Respondent violated A.R.S. §32-1154A (7), (15) and (3), namely R4-9-108. FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) On June 1, 2004, Complainant and Respondent entered into a contract in which Respondent agreed to construct a rock waterfall and collection pond connected by a 52-foot “stream” in the backyard of Complainant’s residence. Exhibit C3. (2) The water feature was completed in November, 2004, and did not exhibit any problems during the first few months of operation. (3) In early spring, 2005, Complainant noticed that an auto-fill valve, installed to automatically add water to the pond when the water level dropped, was running fairly regularly, but the water level in the pond was continuing to fall. Complainant also noticed that even when the water feature was turned off, the water level in the pond continued to drop. Exhibit C7. (4) Complainant contacted Respondent, who inspected the water feature and concluded that some lights that had been installed in the stream might be leaking. Respondent removed the lights and sealed the areas where the lights had been installed. Respondent also repaired a faulty valve on the auto-fill mechanism. (5) Between March and June, 2005, Complainant continued to monitor the water levels in the pond and concluded that the feature had to be leaking because of the amount of water it was using. Exhibit C7 (6) When informed of Complainant’s concern, Respondent again inspected the water feature for possible leaks. He observed some water splashing out of the stream due to the placement of some of the rocks, and he repositioned the rocks to reduce the water loss from splashing. (7) A couple days later, Respondent returned to Complainant’s yard and dug along the sides of the water feature to search for wet spots that might substantiate the existence of a leak. He did not find any. For the next several days, Respondent continued to perform various tests on the water feature in an attempt to locate possible leaks. Exhibit R20. (8) When Respondent was unable to find any leaks, it called an independent company, Leak Detective, for assistance. (9) When Leak Detective inspected the water feature, it conducted a number of tests and determined that there was a small leak in the pond near the drain pipe. Respondent removed the drain covers and sealed the leak. After the drain leak was sealed, Leak Detective retested the water feature and was unable to locate any leaks. Exhibit R26. (10) During July, 2005, Respondent sprayed a product called Thoroseal around the seams where boulders had been placed in the concrete stream bed to eliminate the possibility of water escaping through the seams. (11) Between July, 2005 and early 2006, Complainant did not notice any significant problems with the water feature. (12) In January, 2006, Complainant called Respondent and was informed that Scott Klarkowski, Respondent’s owner, was no longer with the company. Complainant was also informed that the water feature was no longer under warranty with the company. (13) In April, 2006, Complainant received a call from the Phoenix Water Department about his water usage in March, 2006. Complainant learned that, based upon his water meter reading for the month of March, he had used over six times the amount of water used the previous month, and that his average daily water usage was 6,521 gallons. His average daily water usage for the month of March in the previous year had been 1,720 gallons. Exhibit C17. (14) Other than the bill for Complainant’s water usage in March, 2006, Complainant’s water usage was fairly consistent. He testified that his average daily water use was 1,097 gallons in February, 2006, 1,418 gallons in April, 2006, and 2,194 gallons in May, 2006. He also testified that his average daily water use for February through April, 2005 was 1,263 gallons, 1,720 gallons and 2,244 gallons respectively. Neither the Phoenix Water Department nor Respondent was able to determine the cause of the dramatic increase in water usage for March, 2006. Complainant stopped using the water feature in May, 2006. (15) After receiving the call from the Phoenix Water Department, Complainant called Scott Klarkowski, who once again contacted Leak Detective to investigate. Leak Detective discovered a “hairline” crack in the concrete at the base of one of the palm trees in the water feature stream, but did not find any other leaks. Respondent offered to send a technician to fix the hairline crack, but Complainant refused to allow the technician to seal the crack unless all of the rocks in the stream bed of the water feature were removed to inspect for leaks. Respondent refused to remove all the rocks in the stream bed. Exhibits C13, R27. (16) In July, 2006, Complainant filed a complaint with the ROC. On August 18, 2006, the water feature was inspected by ROC Inspector Jack Clark. At the time of the inspection, the water feature was turned off. The Inspector did not observe any cracks in the water feature, and was unable to substantiate Complainant’s claim regarding leaks because there was no water in the feature. The Inspector concluded that there was insufficient evidence to find that Respondent had violated either its contract with Complainant or any statutes governing contractors. He also testified at the hearing that he did not observe anything during the inspection to suggest that the water feature did not meet workmanship standards. (17) At the hearing, Complainant presented the testimony of another landscaping contractor who had given Complainant a bid to remove the water feature and rebuild it. Although the contractor testified that he did not observe any leaks, he added that he would have used a different construction method, one similar to that used with swimming pools, to build the water feature. He testified that Respondent’s workmanship did not meet his standards, but he based that opinion primarily on the facts that the boulders embedded in the concrete created too many possibilities for leaks and the depth of the pond was too shallow. (18) Complainant also testified during the hearing that the finished stream was much wider than originally contemplated in the contract. Additionally, he expressed dissatisfaction with the lighting for the water feature, the construction of the “drop-off” points in the stream, and Respondent’s failure to properly replace the irrigation lines around the water feature when the work was completed. Conclusions of Law: Alleged violation of A.R.S. §32-1154A (7): A violation of this statute is classified as a criminal offense under A.R.S. §32-1164A (1). There was no evidence of criminal conduct by Respondent in connection with this matter. Alleged violation of A.R.S. §32-1154A (3), namely R4-9-108: The contractor, who gave Complainant a bid to replace the stream and the pond, testified that the water feature did not meet workmanship standards in his opinion. He did not point to anything in particular to support that conclusion, other than the fact that he considered the pond too shallow and the “cold” joints between the rocks and the concrete in the stream bed as being susceptible to leaks. He did not see any leaks, however. Furthermore, his method of constructing Complainant’s water feature would have differed significantly from that used by Respondent, and would have cost substantially more than what Complainant paid to Respondent for the water feature. The fact that another contractor would have built the water feature differently does not establish that Respondent’s work fell below acceptable standards. A leak, especially one on the magnitude suggested by Complainant’s water bill for March, 2006, would certainly support a conclusion that the water feature did not meet acceptable workmanship standards. However, there was simply insufficient evidence to establish the existence of such a leak. Despite repeated attempts, neither Respondent nor an independent leak detection service was able to locate any leaks, other than the one near the pond drain which was promptly repaired by Respondent. There is no question that Complainant’s April, 2006 water bill was extraordinary, but evidence at the hearing created little more than speculation as to its cause. Complainant failed to meet his burden of proving, by a preponderance of the evidence, that Respondent violated A.R.S. §32-1154A (3), namely R4-9- 108. Alleged violation of A.R.S. §32-1154A (15): There was no evidence presented at the hearing to establish a violation of A.R.S. §32-1154A (15).

Finally, an allegation that Respondent substantially deviated from the contract plans in building the water feature was included in the Complaint filed with the ROC, and was the subject of considerable testimony at the hearing. However, the ROC Inspector did not render an opinion as to that allegation, due to the roughness of the sketch on which the water feature was based, and Respondent was not charged with a violation of A.R.S. §32-1154A (2). RECOMMENDED ORDER Based on the foregoing, it is recommended that the Citation, together with the Complaint, be dismissed.[1]

Done this day, July 23, 2007

______________________________________ Michael K. Carroll Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification.

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