ALJDEC decisions subject to certification as final

08F-4222-ROC · Registrar of Contractors · 2009-04-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2009 APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by attorney William R. Richardson. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. CDC Pools, Inc., an Arizona corporation, (“Respondent”), is the holder of License No. 121372, a Class B-05 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Complainants’ house and backyard pool, located at 8408 E. Indianola Avenue, in Scottsdale, Arizona, were built in the 1950s. 3. On February 6, 2006, pursuant to a contract between the parties, Respondent re-plastered the existing surface of the pool shell at Complainants’ home. Respondent also replaced the pool wall steps. 4. The pool was refilled with water by Complainants on February 9, 2006.

5. In March, 2007, Complainants contacted Respondent and asked Respondent to investigate a 3” long hairline crack in the East end of the pool. Respondent determined the crack to be a structural crack but, at no charge, performed a repair of the hairline crack in the plaster surface. 6. In July 2007, Complainants contacted Respondent advising that the pool surface looked dirty. Respondent added 2 gallons of BeauTec and advised Complainants to brush the pool walls really well. 7. The BeauTec did not remove the stains so, on January 3, 2008, Respondent added 15 gallons of acid to the pool and again left instructions to brush the pool walls. 8. On March 21, 2008, the pool was drained and Respondent performed a light sanding on the pool surface. On April 7, 2008, Respondent polished and torched the surface. Complainant was not charged for the repairs. The pool was then refilled by Complainants. 9. Still unhappy with the appearance of the pool and after noticing the hairline crack had returned, on May 1, 2008, Complainants filed the instant Complaint with the Registrar of Contractors against Respondent. The Registrar designated the Complaint as Case No. 08- 4222. 10. Registrar of Contractors Inspector Jeff Fleetham was assigned to investigate the Complaint. 11. On May 29, 2008, Inspector Fleetham performed a jobsite inspection of the pool. 12. On June 5, 2008, Inspector Fleetham issued a Corrective Work Order setting forth his orders which numerically corresponded to Complainants’ five allegations in their Complaint: Contractor to Correct the Following by Appropriate Means: 1. Crack at east end of pool. Crack readily visible and not workmanlike. Previous corrective work performed in April 2007.

No Action Required by the Contractor on the Following: 2. Skimmer black due to acid added by contractor. No deficiency observed.

The Following Items are beyond the 2-Year Jurisdiction of the ROC 3. Lines in and all around the wall of pool. 4. Center step of ladder (Complainant had alleged the step was uneven). 5. Large lines at east end of pool. 13. Inspector Fleetham testified that when he performed a jobsite inspection on May 29, 2008, he did check the skimmer and found the dirt that was making the skimmer appear darker was easily wiped off. 14. On July 1, 2008, an inspection of the pool was performed by Respondent’s expert witness, Jonathon Dongell, Research Director for General Cement and Concrete Technologies, LLC.[1] Mr. Dongell testified at hearing that he observed the previously repaired crack had again opened up. Mr. Dongell also noted a new crack, approximately 10’ from the initial crack, directly below the return line running the long-way through the pool. Mr. Dongell opined that this new crack can only be a structural crack. 15. Mr. Dongell offered expert opinion, based on his years of experience working with concrete and plaster, that there are two types of plaster cracks; spider-web-like cracks from shrinkage, or elongated cracks from structural movement. Mr. Dongell opined that, based on his experience and his personal observations of the Complainants’ pool shell, the cracks were caused by structural movement and not by any defect in the plaster product or the application of the plaster by Respondent. 16. In regards to the lines at the end of the pool, Mr. Dongell opined that the lines were caused by plaster dust which adhered to the surface because the calcium salts from the plaster do leach out as the pool is filled. The lines are directly horizontal, reflecting water fill lines and are not the result of any contractor action. The lines reflect a failure to brush the sides of the pool as the pool was being filled. 17. Mr. Dongell testified that if plaster dust (the leeching calcium salts) is not brushed off the plaster finish several times a day for several days while the pool is being filled, subsequent staining and discoloration are imminent. Only sanding and polishing the surface will remove the build-up. 18. Complainants offered no evidence to contradict Respondent’s contention that Complainants were responsible for re-filling and maintaining the pool after resurfacing. 19. No evidence was presented that the repairs performed on the hairline crack in March, 2007 were not performed in a workmanlike manner. 20. No evidence was presented that the sanding and polishing repairs performed on the plaster surface in March and April of 2008 were not performed in a workmanlike manner.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is “by preponderance of the evidence.” A.A.C. R2-19-119(B). 3. Complainants’ allegation, set forth in their May 1, 2008 Complaint, that Respondent failed to correctly center a step when the pool was refinished on February 6, in 2006 (Complaint Item No. 3), is barred by the two-year statute of limitations set forth in A.R.S. 32-155(A). Complainants did not present sufficient evidence of any actions by Respondent that would have “lulled” Complainants into not filing a timely complainant. 4. Regarding the crack at the East end of the pool (Complaint Item No. 2), Complainants did not put forth sufficient evidence that any actions or inaction by Respondent caused the crack. Respondent established that the crack at the East end of the pool was caused by structural movement and not by any defective work, action, or inaction by Respondent. 5. Regrading the skimmer turning black due to the acid being added to the pool (Complaint Item No. 5), Inspector Fleetham testified the dirt was easily removed. No evidence of any defective work, action, or inaction by Respondent was presented as to this Complaint item. 6. As for the lines around the pool (Complaint Item Nos. 1 and 4), the claim that the lines were caused by any defective work, action, or inaction by Respondent when the pool was resurfaced in February, 2006 is barred by the two-year statute of limitations set forth in A.R.S. 32-155(A). Any claim that the lines arose from Respondent’s repair on March 21 and April 7, 2008 by sanding and polishing the pool surface fails as well, not by the doctrine of “gratuitous repair” as argued by Respondent, but by the fact that, if any new plaster dust lines appeared, Complainants again were the party responsible for refilling the pool and brushing the sides.[2] 7. Respondent has not violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as alleged in the Citation and Complaint issued by the Registrar. No adequate evidence was presented that any aspect of Respondent’s workmanship did not meet minimum workmanship standards. 8. Respondent has not violated the provisions of A.R.S. § 32-1154(A)(7), as alleged in the Citation and Complaint issued by the Registrar. No evidence was presented of any wrongful or fraudulent act by Respondent. 9. Respondent has not violated the provisions of A.R.S. § 32-1154(A)(23), as alleged in the Citation and Complaint issued by the Registrar. Respondent has established that the crack at the East end of the pool that Respondent was ordered to correct by appropriate means was caused by structural movement and not by any defective work, actions, or inactions by Respondent. Therefore, Respondent provided valid justification for failing to comply with the Corrective Work Order.

// // RECOMMENDED ORDER On the basis of the foregoing, the entire Citation and Complaint in Case No. 08-4222 and shall 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, April 15, 2009.

Office of Administrative Hearings

__________________________ Michael G. Wales Administrative Law Judge

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

Registrar of Contractors William A. Mundell, Director c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012, Director

By ___________________________ ----------------------- [1] Mr. Dongell testified to his qualifications and established himself as an expert in the field of concrete and plaster pool shells and surfaces. [2] A gratuitous repair is one done outside of the two-year statute of limitations where the Contractor had no regulatory responsibility to perform the repair. The ROC seeks to encourage “good will” repairs and, as such, the repair itself does not extend the statute of limitations for the underlying defect. If the gratuitous repair involves faulty workmanship, however, the repair is actionable.

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