ALJDEC decisions subject to certification as final

07F-M1958-ROC · Registrar of Contractors · 2008-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 27, 2008

APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, Scott McWilliams. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained Respondent to install the steel in his new pool construction project. Complainant contends that Respondent failed to follow the applicable plans and specifications for the project, causing damage to his pool deck. The facts surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant contracted with a company, Build Your Own Pool, (“BYOP) to assist in the construction of the new pool project. From the evidence presented it was shown that BYOP provided specified services, as a construction project consultant, to assist a homeowner in acting as his own general contractor for the construction of the new swimming pool. b. Among other things, BYOP provided the plans for the project, the pool equipment, and “construction advisory service and field support.” The evidence of record showed that BYOP sent its agents to the site to superintend the project and advise Complainant when the project was ready for the next phase. In addition, BYOP provided Complainant with a list of recommended contractors. Respondent was on the list for the steel portion of the project. All subcontractors were hired and paid directly by Complainant. c. It was undisputed that the applicable plans, provided by BYOP, showed “skybar” for the edge of the top of the pool, where it meets the pool deck. Evidence presented at the hearing showed that skybar is steel coming out of the pool, which is then bent over on a ninety degree angle to tie into the pool deck. d. Sometime after the pool was completed, Complainant observed lifting of the deck at the area where it abuts the bond beam of the pool, as well as the opposite edge of the deck, where it meets the adjoining concrete patio. Based on this failure in the deck construction, Complainant filed Registrar of Contractors’ Complaints against the concrete contractor, as well as Respondent. e. Notwithstanding the specification in the applicable plans, it was undisputed that Respondent did not install the skybar. f. Evidence of record showed that BYOP, not only inspected the steel installation on Complainant’s behalf, but also provided him with written reports on the inspections. The final steel inspection report, dated March 1, 2006, was entered into evidence as Respondent’s exhibit “A” and it showed that BYOP found the steel construction to be “OK” and advised Complainant to proceed to the next stage of the project. Complainant also viewed the steel construction and admitted that he had reviewed the plans and specifications before construction. g. It was undisputed that the local building authority also viewed the steel installation and approved same. h. It was not until after Complainant experienced the rising of the deck issue that he determined that the skybar had not been installed. Thus, he filed the instant Complaint with the Registrar of Contractors. i. After the Registrar of Contractors received this Complaint, the matter was assigned to one of the Registrar’s inspectors, who appeared at the instant hearing and provided testimony. j. The inspector testified that he observed the deck to be raised to some degree, causing a gap between the bond beam and the edge of the deck. He reviewed all the information on the case and determined that Complainant was acting as an owner/builder for the pool project, with BYOB acting as his agent, consultant or superintendant on the project. k. Among other things, the inspector testified that the home in question is located in Gilbert, an area of known expansive soil. According to the inspector, he generally does not see the use of skybar in areas of expansive soil. In his opinion, Complainant would have experienced worse cracking of the deck, had skybar been installed in this area of expansive soil. l. After concluding his inspection, the inspector issued a written report, indicating that “due to the fact the rebar installation was inspected and passed by the Town of Gilbert, the superintendant employed by the homeowner and the homeowner, who was acting as the general contractor, prior to the installation of any shot-crete, no action required of contractor.” m. After receiving the above-referenced report from the assigned inspector, Complainant requested the instant hearing. n. Clifford Reid (“Reid”) appeared and testified for Respondent. Reid was shown to have significant experience in the pool construction industry. He was employed by Respondent at the time of the installation of the rebar in Complainant’s pool. He indicated that it is not normal to install skybar in an area of known expansive soil, because the deck will be raising and lowering. According to Reid, if skybar is installed in such a situation, it could cause extensive and serious cracking of the deck, as it moves from the expansive soil situation. Reid further opined that it is better to have the gap between the deck and the pool, which can be easily grouted, as needed. o. In Reid’s opinion, it is the responsibility of the pool general contractor to correct the existing problem with the raised deck and Respondent did not do anything improper in their work. p. Don Smith (“Smith”), Respondent’s owner, appeared at the hearing and provided testimony. Smith testified that an employee of BYOP contacted him regarding whether or not skybar should be installed in the pool. This BYOP employee was concerned due to the expansive soil situation. Smith advised the person, acting as the superintendant for BYOP, that adding skybar would cause big cracks if and when the deck lifted. It was agreed between Smith and the superintendant for BYOP that skybar should not be installed. q. Smith indicated that most pool companies no longer install skybar, due to the problems it can cause with cracking decks and you should never install skybar in expansive soil areas, due to the potential of serious deck cracking. r. According to Smith, the steel was installed per the instruction of the superintendant on the job, to delete the skybar. Furthermore, when the steel was inspected, none of the inspectors said you need to put in skybar.

3. Evidence of record was sufficient to support a finding that Complainant was, in fact, acting as the owner/builder on this project. Therefore, he assumed the normal responsibilities and liabilities of a general contractor and, as such, he is fully responsible for the acts and conduct of all of his agents. The evidence presented was adequate to show that Complainant’s agent, the superintendant employed by Complainant’s consultant on the job, approved the deletion of skybar. The steel project was not only inspected and approved by the project consultant, but also by the local building authority. In addition, Complainant, himself, as the de facto general contractor for the project, had the opportunity to view the steel and knew or should have known that the skybar had been deleted.

4. It is determined and held that under all of the facts and circumstances presented herein, that Complainant and/or his agents accepted the steel as-built and therefore, Complainant should now be estopped to complain that the skybar had not been installed. In addition, the evidence of record was sufficient to show good cause why skybar should not have been installed in such an expansive soil area. Complainant failed to sustain the requisite burden of proof on the issue presented herein.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (M07-1958), together with the Complaint upon which it is based, be dismissed. 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, March 3, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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