ALJDEC decisions subject to certification as final

07F-M0228-ROC · Registrar of Contractors · 2007-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 18 April 2007 APPEARANCES: Complainant: Andy and Marilyn Mausser. Respondent: Mark Bowers, General Manager, Pacific Pools; Craig Parker, Field Operations Manager, Pacific Pools. Others: Jack Clark, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Respondent contracted with Complainant in April 2006 to build a pool in his backyard. The project was completed to Complainant’s satisfaction, except for the concrete decking around the pool area. Complainant had requested the concrete be coated with “Kool-deck”, a 3-dimensional cementitious lattice coating, standard with most pool installations. However, when the concrete was poured, it was discovered that the concrete mixture was setting up too quickly (not enough water or too much cement in the mixture), and it would not be advisable to apply the Kool-deck to the concrete, as Kool-deck requires the concrete surface be “green” (freshly poured and set up, but still with sufficient water saturation) to insure properly chemical and physical bonding to the surface of the concrete. 2. In situations where Kool-deck is being applied to old concrete surfaces or, as in this situation, new concrete sets up too quickly to apply standard Kook-deck, Respondent uses an acrylic Kook-deck. Although standard Kook-deck can be used on older concrete surfaces, experience shows that it tends to start debonding from the concrete after 3-4 years. Acrylic Kool-deck is an upgraded application, and lasts longer than standard Kool-deck. Respondent offered the upgraded acrylic Kool-deck to Complainant at no extra cost, and Complainant accepted its installation. A color very similar to the original color Complainant selected for the standard Kool-deck installation was used. Complainant now complains that the acrylic Kool-deck is not as “cool” to the touch in the summer as standard Kool-deck and wants Respondent to correct the problem by putting in a lighter colored standard (non-acrylic) Kool-deck. 3. Mr. Clark, the ROC Inspector, inspected the installed Kool-deck at Complainant’s home in September 2006. He observed no workmanship issues with the installation, and noted that the acrylic Kool-deck color installed was very nearly the same as the original color Complainant had selected. Mr. Clark issued his inspection report in a letter dated 15 September 2006, where he stated, in pertinent part that, “The complaint is not about workmanship and it is this inspector’s opinion that the Complainant got everything he paid for”. Complainant’s disagreed with Mr. Clark’s assessment, and the case was set for hearing, with a Complaint and Citation issued by the ROC 1 December 2006 alleging a violation of ARS §32- 1154(A)(2) & (7). 4. Both Mr. Clark and Mr. Bowers testified that the biggest variable in the relative perceived surface temperature of Kool-deck by the human touch on a sunny day is the color of the Kool-deck itself, with lighter colors feeling cooler, and darker colors feeling hotter. This is due to the fact that the darker colors absorb more heat more quickly from the Sun than lighter colors. Complainants testified that they were unaware of this fact.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32-1154(A). The fact that the ROC inspector opined that the Kool-deck met all applicable industry standards in terms of workmanship, construction and installation is telling. In cases such as this, the skill and expertise of the ROC Inspector who is professionally skilled and knowledgeable of the standards imposed by the ROC (as opposed to the standards adopted by other construction or manufacturing industry groups or associations, or the standards of the Complainant) must be given a certain deference. It is obvious to this tribunal that Complainant’s standards have not been met by the Respondent; however, it is the ROC’s standards that apply in this case, and not Complainant’s own sense of aesthetics. In addition, the basic complaint in this case is that the acrylic Kool-deck is not as “cool” as expected. However, it was Complainant who approved the installation of the acrylic Kool-deck, and it was the Complainant who selected the color. Respondent followed all applicable industry standards and procedures for the installation of the Kool-deck and color selected by Respondent. The fact that Complainant is now dissatisfied with the color and acrylic Kool- deck he selected is not a problem that can be fairly attributed to Respondent.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, April 20, 2007

______________________________________ Maurice McWhirter 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 ___________________________ -----------------------

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