ALJDEC decisions subject to certification as final

07F-M0320-ROC · Registrar of Contractors · 2007-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2007 APPEARANCES: Theresa Shipley, Complainant; Mike Esquivias, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On July 31, 2006, a Complaint was filed with the Registrar of Contractors (“ROC”) alleging that Respondent failed to fix a crack in Complainant’s swimming pool after replacing the plaster in the pool. On April 27, 2007, a Citation was filed by the ROC alleging that Respondent had violated A.R.S. §32-1154A (7), (23) and (3), namely Rule R4- 9-108. FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) In April, 2005, Respondent replaced the plaster inside Complainant’s swimming pool which had been built in 1986. (2) After the pool was replastered, Complainant noticed some rust spots around some “pop-ups” in the pool. She contacted Respondent who immediately removed the rust spots.

(3) A few months later, in September, 2005, Complainant noticed that a crack had developed in the plaster near the drain at the deep end of the pool. Again, she contacted Respondent. Respondent drained the pool, opened the crack with a grinding tool, and patched it with the original plaster compound used in replastering the pool. At that time, according to Mike Esquivias, Respondent’s owner, he informed Complainant that the crack was “structural” and that there was nothing more that could be done to repair it. (4) In April, 2006, the crack reappeared and had grown larger. Again, Complainant contacted Respondent. Again, Respondent drained the pool and patched the crack using the same procedure it had used for the previous repair. (5) When the crack reappeared a short time later, Complainant contacted Respondent who sent a diver to inspect the crack. According to Complainant, Respondent’s diver informed her that the crack was “structural,” and probably could not be repaired. He informed Complainant that the crack was not leaking at that time. (6) In December, 2006, after filing a Complaint against Respondent with the ROC, Complainant drained the pool so that it could be inspected by an ROC inspector. On December 20, 2006, ROC Inspector Geoff Galgan inspected the pool and observed what he later described as a “hairline” crack approximately two to three feet long in the plaster near the pool drain. (7) Following that inspection, the Inspector issued a Corrective Work Order (“CWO”) in which he stated: 1. Plaster crack in bottom of pool – In this inspector’s opinion, the crack is hairline in nature and has been repaired. No action required of contractor. 2. Damaged “cool decking”-Contractor to correct by appropriate method those areas damaged by this contractor.

(8) At the time of the hearing, the damage to the cool decking was no longer an issue, and no evidence was presented regarding that item listed in the CWO. (9) Complainant testified that, after the ROC inspection, she contacted Shasta Pools, who sent a diver to inspect the crack. The diver took photographs of the crack (Exhibit C1), and performed a dye test to determine if the crack was leaking. The diver concluded that the crack was leaking. Exhibit C2. (10) After she was informed of the diver’s conclusion, Complainant contacted a pool repair company which proposed that the pool shell, the concrete which forms the structure of the pool, be repaired using a high pressure injection of epoxy resin to bond the broken area back together. It also suggested that rebar “stitches” be placed perpendicular to the crack in order “to help transfer stress load into a larger portion of the shell.” Exhibit C3. (11) Mike Esquivias testified that he had repaired the plaster crack on two occasions, mainly as a courtesy to Complainant. He stated, however, that he had determined at the time of the first repair that the crack was “structural,” meaning that it was in the concrete which formed the structure of the pool. He explained that, when the old plaster is removed from a pool for resurfacing, there are several cracks in the exposed concrete shell of the pool. It is rare, however, that those cracks are structural and result in leaks. A contractor replacing the pool plaster has no way of knowing if any of the apparent cracks are a structural problem. He said, however, that his original work in removing and replacing the plaster coat over the concrete shell would not have caused the structural crack, and he had no way of knowing if the structural crack was there when he replastered the pool. Conclusions of Law: (1) Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. Arizona Administrative Code, Section R2-19-119. A “preponderance of the evidence” is proof sufficient to persuade the fact finder that a proposition is more likely true than not. (2) Alleged violation of A.R.S. §32-1154A (7): Violations of this statutory provision are classified as criminal offenses under A.R.S. §32-1164A (1). As such, they appear to be outside the purview of this administrative proceeding. However, assuming that alleged violations of this statutory provision are cognizable in an administrative proceeding and subject to a lesser evidentiary standard than that applicable in a criminal proceeding, there was no evidence to establish such a violation in this case.

(3) Alleged violation of A.R.S. §32-1154A (23): The CWO issued by the ROC inspector did not require any corrective work with respect to the crack that had been observed in the bottom of Complainant’s pool. There was no evidence that Respondent had not performed the necessary corrective work with respect to the pool decking. There was no evidence to establish a violation of A.R.S. §32-1154A (23). (4) Alleged violation of A.R.S. §32-1154A (3), namely Rule R4-9-108: There was no evidence to establish that Respondent bore any responsibility for the structural crack that developed in the bottom of Complainant’s pool after the concrete pool shell was resurfaced by Respondent. The pool was 20 years old, and, according to testimony at the hearing, the crack could have been caused by any number of things unrelated to Respondent’s work on the pool. Additionally, there was insufficient evidence to establish that the replastering work completed by Respondent failed to meet workmanship or industry standards. RECOMMENDED ORDER It is recommended that the Citation, together with the Complaint upon which it is based, be dismissed.[1] Done this day, September 6, 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