ALJDEC decisions subject to certification as final

08F-G2020-ROC · Registrar of Contractors · 2008-07-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2008.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent appeared through its President and qualifying party, John Norberciak.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. At the outset of the scheduled administrative hearing, the Complainant stated that only the seven separate items or issues discussed in the below Findings of Fact are presently still unresolved or incompletely resolved between the parties. Consequently, a finding is warranted that, as to all eight other enumerated items or issues contained in the originally filed complaint, all such other issues have been either adequately corrected or were otherwise no longer being pursued by Complainant.

2. Pursuant to a written proposal, duly accepted by Complainant and thereby ripening into a contract dated in late July, 2006, the Respondent agreed to and did construct a swimming pool on Complainant’s property. The contractually agreed cost price of $28,000.00 has been fully paid to Respondent by Complainant, with the final payment being transmitted in late October, 2006.

3. Numerous alleged deficiencies were set forth in a formal complaint filed by Complainant with the Registrar of Contractors on June 26, 2007, almost one year prior to the instant hearing date and slightly less than one year after the parties’ contractual agreement.

4. Following a jobsite visit by the Registrar’s assigned Inspector, a written Corrective Work Order was issued to Respondent confirming the need for remedial work on most all enumerated complaint items. The written directive indicated that as to several such items, the identified corrective work had already been performed prior to the jobsite inspection date, and therefore required no further action on the part of Respondent.

5. The Inspector’s directive, as well as his sworn testimony at the hearing, confirmed that several of the enumerated complaint items were the subjects of an express jobsite agreement on the part of Respondent to undertake and complete appropriate measures to rectify the reported pool- related problems. Such mutual agreement as to those identified items made it unnecessary for the Inspector to make any separate determination on the validity of those items which effectively became included in the directive by virtue of the parties’ mutual agreement.

6. The numbers in parenthesis following or within the discussions in the following Findings of Fact addressing all items presently in issue between the parties correspond to the numbers assigned to such items in a punch list attached to the filed complaint and in the Inspector’s Corrective Work Order.

7. Despite its express jobsite agreement, Respondent was shown not to have provided Respondent with any written receipt or other proof of purchase for the Aqua-Jet cleaning system (Item # 1), the Fiber Optic system (Item # 2-B), and the pool pump (not a separate complaint item). In light of the possibility that Complainant may need such written documentation for purposes of pursuing future warranty rights applicable to the provided equipment, it is determined that Respondent must furnish Complainant with some form of written confirmation that the underlying pool purchase included the specifically identified equipment obtained by Respondent from various manufacturers and utilized as part of the overall pool construction.

8. The pool’s Fiber Optic system had included components consisting of a plastic cable channel that was shown to have persistently come loose from the wall or other surface to which it had been attached. Although the parties’ contract had specified a metal channel, credible testimony at the hearing tended to indicate that the providing of a plastic channel did not constitute a material or prejudicial deviation from such specification, but instead may well have been a beneficial substitution. However, the manner of attachment with a form of sticky tape and perhaps some silicon covering was shown not to have achieved an adequate, acceptable and lasting attachment of the channel. Effective remedial work by Respondent is required (Item # 2-D).

9. A portion of the water feature forming part of the Fiber Optic system consisted of Laminars that produced a high thin stream of water spray into the pool. Following some substantial deck replacement work, the proper operation of these Laminars was shown not to have been properly restored, since one such unit was unable to produce a spray equal to the height of the other unit. The adjustment made by Respondent to lower the height of the other Laminar spray to a point equal to the lower height spray of the adversely affected Laminar is found not to have been a correction that was appropriate or in keeping with Complainant’s contractual expectations and entitlements. The probable cause of the lowered height spray capability was shown likely to be

attributable to a blockage in the plumbing piping. Additionally the color change feature of the sprays was shown not to be operating as intended with the spray from one Laminar not changing color to coincide with the color change in the spray from the other Laminar. These described deficiencies must be properly addressed and rectified by Respondent (Items ## 2-A and 2- C).

10. The return heads furnished and installed by Respondent on the interior walls of the pool were admittedly not the heads utilized by Blue Haven Pools, a competitor of Respondent, with whom Complainant had originally intended to contract to be his pool builder. It was not disputed that Respondent’s sales representative had expressly assured and promised Complainant that Respondent would obtain and utilize Blue Haven return heads. Despite some difficulty and much delay in obtaining Blue Haven return heads attributable to proprietary design and manufacturing reasons, Respondent stated at the hearing that it had finally obtained these return heads very shortly prior to the instant hearing date and was prepared to install them in the walls of Complainant’s pool. The evidence at the hearing failed to sufficiently establish by the necessary preponderance of the evidence that the presently existing plumbing piping or pump pressure was inadequate to enable the appropriate functioning of the Blue Haven return heads. Respondent is obligated pursuant to what is found to have constituted a verbal specification for Complainant’s pool structure to remove the presently installed return heads and to properly install the Blue Haven return heads (Item # 8).[1]

11. Several small chips or voids in the pebble tec finish on the pool’s interior surface were shown to have existed since Respondent’s prior deck demolition work. Such voids were allowed to remain unrepaired by Respondent for a prolonged duration and still have not been corrected despite this item’s inclusion in the Inspector’s directive

and the express agreement of Respondent’s representative at the jobsite inspection to address and correct this problem which will necessarily encompass the draining and refilling of the pool water.

12. Appropriate repairs to the pebble tec finish must be completed by Respondent using materials that, although not exactly matching the existing pebble tec surface color, must fall within acceptable industry tolerances for color variations. Additionally, with respect to the pool draining necessity, Respondent is found to be responsible for furnishing the appropriate pumping equipment, all needed replacement pool water chemicals, and also for reimbursing Complainant for the approximate cost of the water to be used in re-filling the pool, based upon the pool’s capacity in gallons. Complainant remains responsible for furnishing the electricity for operating the pumping equipment and for the actual re-filling of the pool with water (Item # 12).

13. Some excessively rough materials, possibly fiberglass or a similar substance, were shown to have been protruding from the surfaces under the cantilevered decking at various locations around the pool perimeter that posed a realistic danger to flotation devices and also potentially to persons swimming in the pool. Although Respondent admittedly rectified some of the worst areas of roughness, some other areas were apparently not treated or incompletely treated and still remain in an unacceptable condition. Respondent is required to perform additional remedial work to eliminate the excessively rough conditions (Item # 13).

14. The salt generator installed as one of the pool’s features became one of the subjects of the Inspector’s directive. As to this complaint item, another jobsite agreement was concluded pursuant to which Respondent had agreed to appropriately correct any problems found with this feature that was to assure that necessary chlorine was being provided for the pool water. Respondent did cause the making of a jobsite

visit by its subcontractor who had checked out and verified the performance results of the installed equipment. However, such subcontractor, with the concurrence of Respondent, specifically agreed to exchange the salt generator unit for another newer model. No correlation between the original salt generator’s performance and some greening discoloration within the pool was sufficiently proven by competent and reliable evidence at the hearing. Nevertheless the specifically promised new equipment should be provided and installed by or on behalf of Respondent and the originally salt generator unit must be removed (Item # 15).

15. At numerous perimeter locations, the pool tile pieces were shown to be sticking out to some relatively small degree from the pebble tec material applied to the wall surfaces directly below the tile. Although generating some degree of aesthetic detraction, the extent to which the tile extended away from a flush joining of the pebble tec material was not sufficiently demonstrated by credible evidence to have exceeded allowable industry standards and tolerances, especially since the selected tile materials were shown not to have been perfectly consistent with respect to the overall size and width of each of the tile pieces. Moreover, the evidence failed to adequately demonstrate any likelihood of future water intrusion behind the tile as a result of any offset condition. No requirement is found for Respondent to perform additional work on the pool tile installation (Item # 14).

16. Construction is not a perfect science, and it is not unusual for items to require attention by way of correction, replacement or adjustment – often even more than once. No finding of a contracting law violation is generally supportable unless and until, after notice and a reasonable opportunity is given, a licensed contractor fails to rectify construction deficiencies.

17. Uncorrected or inadequately corrected items of complaint still exist and reflect adversely upon Respondent’s workmanship. Additionally, the failure to have

accomplished appropriate remedial work after the passage of far more than a reasonable time period, and after having communicated express agreements to rectify certain problems, is further found to constitute a wrongful (but not fraudulent) act by Respondent resulting in detriment to Complainant within the meaning of another contracting law provision charged hereunder as being violated by Respondent.

18. Although Respondent’s post-complaint actions in correcting eight out of the fifteen separate complaint items and in making significant efforts to address another item must be viewed as highly commendable, the evidence indicated that five other items included in the directive (the validity of one remaining item being held herein not to have been sufficiently proven) were allowed to remain unresolved together with the one incompletely rectified item. Consequently, it is found and determined that Respondent has not substantially and properly complied with the terms and conditions of the Inspector’s issued Corrective Work Order.

18. Notice is taken of the Registrar’s license records which reveal that Respondent has achieved and maintained an above-average prior record as a swimming pool contractor in this State. Accordingly, it appears fully appropriate for the Registrar to decline to impose any additional penalties against Respondent’s license in this case other than (a) a provisional license suspension conditioned upon the accomplishment of remedial work on all items found to warrant corrective measures at this time and other than (b) a reduced amount of a civil penalty based upon the failure to substantially and timely comply with the issued written directive.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v.

State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2- 19-119, A.A.C. 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 of record sufficiently established that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7), (23) and (3); namely, Rule R4-9-108, A.A.C.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class B-05 license be suspended unless or until written proof is filed with the Registrar that Respondent has accomplished appropriate corrective work on the items set forth in Findings of Fact Numbered 7 through 14, inclusive.

It is further recommended that if written proof has been filed with the Registrar demonstrating that Respondent has accomplished all of the above-described corrective work in a proper, workmanlike manner on or before this Order’s effective date, then no license suspension shall be imposed.

It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective

date of the Order entered in this matter shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

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 will be forty (40) days from the date of that certification.

Dated: July, 2, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

----------------------- [1] It must be noted that the installation of return heads of any type in the pool walls, although of some overall benefit, was not and is not intended to eliminate the necessity of future pool cleaning or other periodic maintenance on the part of property owner.

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