ALJDEC decisions subject to certification as final

08F-2066-ROC · Registrar of Contractors · 2009-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2009 APPEARANCES: The Complainant represented himself. Dan Gallagher, Corporate Officer, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. On or about December 2, 2006, the parties entered a contract whereby the Respondent would perform certain repairs and upgrades[1] of the Complainant’s swimming pool at the Complainant’s home in Phoenix, Arizona. The total contract amount was $11,755.58. 2. On January 30, 2008, the Complainant filed the Complaint with the Registrar of Contractors (ROC). The Complaint asserted cracks in the pool deck coating, hollow sounding portions of the pool deck, cracking grout at the water line tile, improper salt water chlorinating system (Pool Thing) installation, and rust through of the pebble sheen which required patching. 3. By way of background, the Complainant testified the project took three months to complete but that problems began the first day when the preparation for a new deck was inadequate (no high pressure power wash of the old deck) to receive a new coating. The Respondent offered testimony of equal weight, asserting the existing deck was power washed and acid washed prior to the application of the new deck coat[2]. 4. The Complainant asserted other potential violations such as deviations from the (National) Electric Code and the Uniform Plumbing Code, but did not present specific evidence of any code requirements, or competent evidence of the purported deviation. 5. ROC Inspector Goeff Galgan (Galgan) performed a jobsite inspection on February 26, 2008. In his Inspection Result dated March 11, 2008, Galgan concluded the deck cracks were less than 1/16” horizontal displacement with no vertical displacement and no action was required. As to the claimed hollow sounding portions of the deck, it was not shown the deck coating was separating from the concrete and no action was required. The cracked grout line was not deemed excessive and no action was required. The salt chlorinating system was correctly installed and no action was required. The need to patch the pool is not unusual and no action was required[3]. Concrete cracking around the water leveler was not adversely affecting the construction and no action was required. 6. As of the date of the hearing, the issues which are outstanding are the failed salt chlorinating system resulting in the loss of the manufacturer’s warranty[4], failed (cracked) decking, and failed grout above the tile around the interior of the pool[5]. 7. Based on photographic evidence, the size of the deck cracks[6] and the space between the grout line and deck is the width of a dime. Regarding the crack in the pool deck, Galgan testified that ROC standards allow for up to 3/32” wide concrete cracks, and as to the grout line, that some movement is necessary between the pool and the deck and the crack is not excessive. According to Galgan, the deck crack is possibly caused in part by movement of the underlying concrete[7]. Galgan’s testimony was not satisfactorily rebutted to show either a material deviation from plans, specifications or a deviation from established or recognized workmanship standards. 8. During the course of the hearing, the Complainant enlarged the issue with respect to the Pool Thing salt chlorinating system. The initial Complaint addressed the manner of installation of the chlorinating system. At the hearing, the Complainant raised the allegation that the system was not functioning as intended. The Complainant moved to amend the Complaint on the issue, and the Respondent did not object but asserted the Pool Thing was part of a promotion and the Complainant was not charged for it. The amendment was granted[8]. 9. Robert Trepp (Trepp) was the designer and manufacturer of the “Pool Thing” salt chlorinating system. Trepp testified that although the installation of the cell housing was not done as suggested[9], the installation did not impair the functioning of the system. A gauge adjustment was all that was required to address any problem related to water bubbles. Trepp went on to testify that the more serious problem concerned the cell plates which are integral to the system operating properly. These cell plates have positive and negative sides and require proper and timely cleaning or “bridging” (a mineral build up on the plates) develops which changes current density and causes de- lamination of the plates. Once this occurs, the system cannot operate as intended and the manufacturer’s warranty does not cover its replacement because it is a pool owner maintenance issue. Trepp identified a crack in the base of the housing and described it as a likely structural failure.[10] 10. The Complainant, an engineer[11], testified the Respondent failed to leave a maintenance manual or any written instructions for servicing or maintaining the chlorinating system. In addition, the Respondent did not provide a certain tool[12] for cleaning the cells which are no longer functional due to the Complainant’s failure to clean them. The Respondent acknowledged a manual was assumed to have been included with the system and when the Complainant inquired about it, he was directed to a website for maintenance instructions. In addition, the Respondent asserted that since the Pool Thing was a promotion and the Complainant was not charged for this specific item, the Respondent should not be held responsible for its failure. This argument is not accepted because whether the Respondent charged for the particular item is not relevant. What is relevant is that the Pool Thing whether promotional[13] or not, was part of the overall contract for which the Complainant paid $11,755.58. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32-1154(A)(2) disregard of plans and specifications prejudicial to another; (3)/A.A.C. R 4-9-108, workmanship standards; and (A)(7), a wrongful act with substantial injury. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The Complainant did not present sufficient evidence to overcome the testimony of Galgan and the Respondent’s witness with respect to the cracks in the deck and at the grout line. Although the photographic and testimonial evidence tends to show what may be considered significant cracks by some, the issue is whether the cracks are unacceptable with respect to an established standard. The Administrative Law Judge (ALJ) has no authority to establish such a standard and according to Inspector Galgan, the cracks were not of such a nature as to constitute a violation under the relevant ROC standards. 5. The remaining issue concerns the responsibility for the failure of the salt chlorinating system. The Respondent’s failure to provide adequate information for the care of the system and the Respondent’s response to the Complainant’s request regarding information for the maintenance of the system, was unsatisfactory and is deemed a wrongful act. The cost of the system is listed at $1,495.00 in the contract. The amount is substantial despite the assertion that the system was a gratuitous or promotional item. It is concluded the Respondent violated A.R.S. §32-1154(A)(7). 6. The Complainant nevertheless had a duty of reasonable inquiry and some due diligence in determining what was required for maintaining and servicing the system. Based on the evidence it is concluded the parties share equally in the failure of the chlorinating system. 7. The above conclusions relieve the K-36 (Plastering) license from any responsibility in this case Recommended Order It is recommended commencing the effective date of the Order[14] issued in this matter that the Respondent’s K-06 license shall be suspended until the Respondent pays or tenders payment to the Complainant in the amount of Seven Hundred –Forty seven and 50 /100’s ($747.50) Dollars by way of restitution under A.R.S. §32-1156.01, or at the option[15] of the Complainant, replaces the Pool Thing chlorinating system upon the Complainant paying to the Respondent the amount of Seven Hundred –Forty seven and 50 /100’s ($747.50) Dollars. Done this day, February 12, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Armando Contreras , Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Including but not limited to resurfacing the concrete deck, installation of Pebble Sheen, an automatic water leveler, new grout between interior tile and deck. Also according to the Respondent, as a promotion, installation of a Pool Thing salt chlorinator valued at $1,495.00. [2] Some spot grinding may also have been done. [3] The Complainant is seeking reimbursement in the amount of $163.64 for the cost of replacement of the pool water and the salt for the chlorinating system as a result of the need to drain the pool to repair the rusted area. Galgan’s CWO states patching is occasionally necessary and required no action on the patch. Absent a clear violation under Title 32, any claim for consequential damages should be taken to a civil forum. [4] The Complaint initially addressed the chlorinating issue as “Salt water system not installed per the manufacturer’s written instructions. Want installation completed properly.” [5] The parties reached agreement on a separate item whereby the Respondent would install an anti siphoning device. [6] Photographs of three cracks were received (one crack was in a control joint). Two photos show the depicted crack to be the approximate width of a dime or approximately a 1/16th of an inch. The Complainant testified there were from 12 to 18 cracks around the deck. [7] The underlying concrete may be as old as 20 years. [8] The contract was entered December, 2006 but according to the Complainant, the project was not completed for three months or sometime in February 2007 at which point the two year Statute of Limitations would begin to run under A.R.S. §32-1155. The hearing was January 27, 2009, and the issue was therefore raised within the statutory period. [9] The installation was apparently backwards. [10] Trepp alluded to the possibility of warranty coverage for the part. However, Trepp is no longer an owner in the business and it is unknown if there is any warranty coverage. [11] Under the facts of the case, the educational and professional background of person has some relevance with respect to the responsibility a person may have for the problem of which they are now complaining. [12] The tool is essential a wooden stick akin to a paint mixing stick but of specific size. It is not an esoteric device. [13] Even as an inducement, it is still part of the project and subject to ROC requirements . [14] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings. [15] The option is only available if the Pool Thing system is still commercially available.

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