ALJDEC decisions subject to certification as final

09F-L0279-ROC · Registrar of Contractors · 2010-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 24, 2009 at 1:15 p.m. APPEARANCES: Complainant Bill Chambers appeared on his own behalf; Respondent Advantage Pool and Spa Plumbing Inc. dba Advantage Pools appeared through Robert Wayne Scheller, its President and Qualifying Party; Respondent Gilbert and Beeler Construction Company Inc. dba The Southwestern Pool Co. appeared through Jerry Lynn Gilbert, its President and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On August 31, 1988, the Registrar of Contractors (“the Registrar”) issued License No. ROC079822, Class B-05 for residential general swimming pool contracting to Respondent Gilbert and Beeler Construction Company Inc. dba The Southwestern Pool Co. (“Southwestern”), a corporation. On September 8, 2003, the Registrar issued License No. ROC188584, Class B- for residential general swimming pool contracting to Respondent Advantage Pool and Spa Plumbing dba Advantage Pools (“Advantage”), a corporation. Advantage contracted to act as general contractor in the construction of the pool at Complainant Bill Chambers’ residence. Advantage subcontracted to Southwestern plastering of the interior finish of the pool. On April 14, 2009, the Registrar received complaints from Complainant against both Respondents’ licenses, which alleged the same four specific deficiencies in Respondents’ application of plaster to a pool at Complainant’s residence at 2284 Cup Ln. in Lake Havasu, Arizona, as follows: 1) 3-M plaster finish (pool and spa) is very blotchy and uneven 2) Unexposed plaster next to many in floor cleaners in pool and spa 3) Numerous areas around the table and stools are unexposed 4) Acid wash damaged synthetic turf

The complaint form included the question, “What do you want the contractor to do to resolve your complaint?” In response, Complainant requested that both Respondents “[r]e-do the plaster in my pool and spa to look like the beautiful example in Gleneagles that he approves of.” The Registrar referred the complaints to both Respondents for their immediate attention. Advantage’s Complaint against Southwestern in Case No. L09-0220 Previously, Advantage had filed a complaint to the Registrar against Southwestern’s license that included three of the four deficiencies alleged in Complainant’s complaints, which the Registrar had designated Case No. L09-0220. The Registrar’s Inspector Cliff Corlett had performed a jobsite inspection in Case No. L09-0220 and, on February 19, 2009, had issued a Corrective Work Order (“CWO”) in Case No. L09-0220 to Southwestern, which had required it to correct the following deficiencies within fifteen days: THE COMPLAINANT’S ALLEGATIONS ARE UNDERLINED.

1. 3-M plaster finish is very blotchy and uneven. Registrar of Contractors (ROC) ***** The WSLC states that at the time of substantial completion, owner should notify contractor of any EXCESSIVE shading or mottling of the plaster finish. MINOR shading or mottling of the plaster finish is acceptable. (Note: colored plaster finishes may have an even more pronounced degree of shading and or mottling because of the factors inherent in colored finishes. In this application this Inspector has to agree with the Complainant (C/P) that in this colored plaster application the shading/mottling/blotchiness/uneven appearance is EXCESSIVE. Respondent (R/P) should determine cause and correct by appropriate methods. . . . .

3. Unexposed plaster next to many in-floor pop-up heads. ROC ***** Agree. R/P should correct by appropriate means.

4. Numerous areas around the table and stools that are unexposed. ROC ***** Agree. R/P should correct by appropriate methods.

By the time that Inspector Corlett opened the Registrar’s investigation of Complainant’s complaints against Advantage and Southwestern in these matters, Southwestern had resolved to Advantage’s and Complainant’s satisfaction item nos. 3 and 4 on the February 19, 2009 CWO to Southwestern in Case No. L09-0220, which became Complainant’s complaint items Nos. 2 and in these matters. The Registrar’s Investigation of Complainant’s Complaints against Advantage and Southwestern

On April 21, 2009, Inspector Corlett performed another jobsite inspection in these matters. On April 22, 2009, Inspector Corlett issued CWOs to both Respondents that directed them to correct the following deficiencies within fifteen days: 1. 3-M plaster finish (pool & spa is very blotchy and uneven including unexposed plaster next to many in-floor cleaners and numerous areas around table and stools. Registrar of Contractors (ROC) ***** Agree. Respondent (R/P) should determine cause and correct by appropriate methods.

2. Acid wash damaged synthetic turf. ROC ***** Agree. R/P should correct by appropriate methods.

**NOTE** General Residential Swimming Pool Contractor [Advantage] filed complaint L09-0220 against [Southwestern] . . . and a [CWO] (copy attached) was issued on 2-19-09. That file was sent to the ROC main office in Phoenix, AZ. on 4-14-09 to begin the citation and complaint process. A Citation & Complaint will be forthcoming from the ROC legal department and sent to [Advantage and Southwestern] in due time (copy to [Southwestern]).

Case No. L09-0220 was never referred for hearing to the Office of Administrative Hearings. The records in these consolidated matters do not show that any Citation and Complaint was ever issued against Southwestern’s license as a result of Advantage’s complaint in Case No. L09-0220. On May 14, 2009, Complainant requested a hearing on his complaints against Advantage and against Southwestern On August 7 and 11, 2009, the Registrar issued Citations and Complaints against Respondents’ licenses, charging A.R.S. § 32-1154(A)(7), (23), and (3) (namely A.A.C. R4-9-108). Both Respondents timely answered the Citations and Complaints, denying any statutory violations and affirmatively alleging that the plaster finish met or exceeded all applicable workmanship and esthetic standards and what Inspector Corlett referred to as excessive shading or mottling in the CWOs was an inherent feature of the 3-M Colorquartz plaster finish that Complainant had chosen for his pool. The Registrar referred these matters to the Office of Administrative Hearings, an independent agency, to schedule and to conduct fair hearings. Advantage requested that the two matters be consolidated. Although Complainant objected to consolidation, because his complaints against both Respondents were identical and involved the same pool, the matters were consolidated for hearing. A hearing on Complainant’s consolidated complaints was held on December 24, 2009. Complainant testified and submitted twenty-eight exhibits, including twenty-four photographs of the pool and spa. Respondents presented a unified defense. Southwestern’s President and Qualifying party Jerry Gilbert testified and submitted thirty-four exhibits. Advantage’s President and Qualifying Party Robert Scheller testified. Inspector Corlett also testified. Additional Evidence The Uneven Plaster Finish The Registrar’s Workmanship Standards for Licensed Contractors provides as follows with respect to complaints of excessive shading or mottling of plaster finishes in swimming pools: At the time of substantial completion, owner should notify contractor of any excessive shading or mottling of the plaster finish. Minor shading or mottling of the plaster finish is acceptable. (NOTE: Colored plaster finishes may have an even more pronounced degree of shading or mottling because of factors inherent in colored finishes. Normal variations in pool water chemistry and ultraviolet action will cause some discoloration or shading of the plaster finish after completion and is considered normal. Calcium or alkali may precipitate out of pool water onto the plaster surface causing discoloration or roughness.)[1]

Inspector Corlett admitted at the hearing that this standard is “somewhat subjective.” He testified that, based on his experience as a general contractor and having inspected approximately 300 pools in the Lake Havasu area as a Registrar’s inspector, he still felt that the shading and color variations of Complainant’s pool were excessive. The manufacturer’s promotional literature for 3M Colorquartz plaster describes the product as follows: Natural variations on a beautiful theme. . . . The combination of our colored crystals randomly distributed within the pool plaster and the craftsmanship of a hand-troweled finish lend to these rich, natural variations. Enhancing our pool’s finish with 3M Colorquartz Crystals gives your pool depth and a one-of- a-kind appearance.

3M’s website tells consumers to expect the following if they chose the Colorquartz product for the interior of their pools: Often, it’s the natural variations that define the quality of beauty – seemingly random arrangements of color, texture, and pattern. Each unique Colorquartz pool shares this principle of natural beauty. The combination of crystals randomly distributed within the pool plaster and the craftsmanship of a hand-troweled finish give rise to the rich, natural variations. As it ages, your pool will grow even more beautiful, like fine wine.

Mr. Scheller provided Complainant with the product literature. On July 21, 2008, Mr. Scheller on behalf of Advantage signed a “General Working Agreement for 3M Colorquartz Product Selection Process,” which Southwestern requires all the general contractors with whom it contracts to sign and which provided in relevant part as follows: 7. It is important for a general swimming pool contractor to advise a potential customer that a pool plastered by [Southwestern] is not just a colored plaster finish, but a colored plastered finish with permanently colored 3M Colorquartz added.

8. The 3M Colorquartz interior finish of swimming pools plastered by [Southwestern] usually exhibit extreme color variations and/or appears [sic] what could be called “blotchy.”

9. Once the customer has made a color selection, it is the general swimming pool contractor’s responsibility to provide a guided tour for each potential customer to an existing pool plastered with the 3M product by [Southwestern].

Mr. Scheller provided Complainant with a list of the addresses where Southwestern had plastered pools using the 3M Colorquartz product in the vicinity of Complainant’s residence, including addresses in the Gleneagles subdivision, and advised him to look at the pools. Complainant did not look at any of the other pools that Southwestern had plastered in the vicinity of Complainant’s residence using the 3M Colorquartz product. Nonetheless, Complainant selected 3M Colorquartz plaster for his pool in the color Caribbean Blue. 3M Colorquartz plaster contains quartz-like aggregate. Caribbean Blue contains black, blue, yellow, and white aggregate. On August 9, 2008, Southwestern plastered Complainant’s pool using the 3M Colorquartz product in the shade of Caribbean Blue. On August 12, 2008, Advantage sent to Complainant the final invoice in the amount of $7,696.05 for the balance due for construction of the pool. Complainant did not immediately pay the invoice. On August 15, 2008, Mr. Scheller informed Mr. Gilbert that Complainant loved the color of the plaster but had “some issues” with trowel marks and roughness on the bottom of the pool. However, Complainant would not allow access to Respondents to address his concerns until the winter months. On January 12, 2009, Complainant for the first time complained to Advantage and Southwestern that the finish the 3M Colorquartz plaster appeared “blotchy.” Complainant still had not paid the full amount of the final invoice. Mr. Scheller testified that Advantage filed the complaint to the Registrar against Southwestern on Complainant’s behalf in an attempt to obtain final payment from Complainant, not because he felt that there was anything wrong with the plaster finish that Southwestern had applied to Complainant’s pool. On January 21, 2009, Southwestern drained the pool and cleaned it with muriatic acid to address Complainant’s stated concerns about the color and shading variations in the 3M Colorquartz plaster finish. Complainant submitted photographs of his pool and spa at hearing. Respondents submitted photographs of Complainant’s pool and spa and of the seven other customers’ pools and spas to which Respondent had applied the 3M Colorquartz plaster finish, which Advantage had advised Complainant to view before Southwestern applied the finish to his pool. The shading and color variations in all the photographs submitted of the pools and spas were comparable. After the CWOs in this matter were issued, Advantage filed suit against Complainant for the amount remaining due under the contract in Lake Havasu City Justice Court Case No. JCV200901056. On September 10, 2009, Justice of the Peace Pro Tempore Robert Mammano issued a judgment in favor of Advantage in the amount of $3,000.00, which would be “effective when [Advantage] satisfactorily repairs the pool plaster as set out in the Registrar of Contractors [CWO] dated April 22, 2009 . . . .” The Damaged Synthetic Turf As noted above, Southwestern attempted to address Complainant’s concerns about the plaster finish by draining the pool and washing it with muriatic acid on January 21, 2009. Complainant testified that he was present when Southwestern drained the pool and observed water leaking from the line and damaging the synthetic turf next to the pool. As a result, he testified, the synthetic turf was “ruined.” Mr. Gilbert agreed that the turf had been ruined. However, he testified that he and his employees had not seen Complainant when they drained and washed the pool with muriatic acid. Mr. Gilbert denied that Southwestern had damaged the turf. Mr. Gilbert testified that neither he nor his employees saw any damage to the turf when they performed corrective action on January 21, 2009. Southwestern submitted an affidavit to this effect from one of its employees. Southwestern also submitted a schematic of Complainant’s backyard, which showed the location of the discharge hose and the route that the crew would have taken while they walked around the area performing repairs, from which they would have noticed damage had it occurred while they were performing repairs. Mr. Gilbert and Mr. Scheller also testified that Complainant had not complained about the alleged damage to the turf until January 26, 2009. Complainant testified that he had complained to Advantage immediately. Mr. Gilbert testified that Southwestern had obtained from the local distributor a section of the Synlawn artificial turf that had been installed at Complainant’s house. He testified that a muriatic acid solution consisting of 50% muriatic acid and 50% water had been applied to the turf and submitted photographs of the results, which showed that the turf turned a very dark green after exposure to the solution. Mr. Gilbert testified that the installer of the Synlawn at Complainant’s residence told him that the Synlawn had “absolutely no resistance to harsh chemicals,” including chemicals commonly found in most residences, such as bleach, chlorine, and uric acid from pet urine. Some chemicals could remove some pigment, resulting in a blue color. Complainant testified that the stain on the synthetic turf was the same color as the predominant color of the 3M Colorquartz plaster. Complainant submitted a photograph, which showed a purplish stain approximately three feet long, in the shape of a long triangle, with the wide end nearest to the pool. Mr. Gilbert testified that Complainant’s backyard had been graded to drain away from the pool, toward the block wall on the perimeter. He argued that, if the discharge hose had leaked as Complainant described it, the wide end of the damage should have been on the side of the perimeter wall. Respondents also submitted photographs of the damaged turf. Mr. Gilbert testified that the shape of the damage “looked like it might have resulted from a tossed container” of some harsh chemical. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] Parties who claim that the matters at issue have already been determined bear the burden to show that the principle of res judicata or collateral estoppel bars relitigation of the matters in this administrative forum.[7] The judgment in Lake Havasu Justice Court Case No. JCV200901056 does not compel a conclusion that Respondents violated any of the Registrar’s statutes when Southwestern applied the 3M Colorquartz finish to Complainant’s pool in the first instance and then failed to correct color variations to comply with the April 22, 2009 CWO in this matter. First of all, Southwestern was not a party to Lake Havasu Justice Court Case No. JCV200901056 and cannot be bound by the judgment. Advantage’s responsibility in this matter rests solely on its subcontractor Southwestern’s responsibility.[8] Secondly, Complainant did not establish that the justice court actually determined that the shading and color variations in the 3M Colorquartz plaster in Complainant’s pool exceeded industry or the Registrar’s standards. Instead, it appears that Judge Mammano simply deferred to Inspector Corlett’s CWO. The issue of whether the shading and color variations in Complainant’s pool is squarely at issue in this administrative proceeding. Inspector Corlett is qualified to testify as an expert on shading and color variations in swimming pool plaster, as well as all other areas of construction. But, when he issued the CWOs in these matters, Inspector Corlett did not have the benefit of the manufacturer’s 3M Colorquartz product information or Mr. Scheller’s and Mr. Gilbert’s testimony and evidence about the parties’ course of dealing. This evidence establishes that the color and shading variations that Inspector Corlett observed are typical of pools plastered with the 3M Colorquartz product. Therefore, Complainant has not borne his burden to establish that either Respondent violated A.R.S. § 32-1154(A)(7),[9] (3),[10] or (23)[11] in Southwestern’s initial application of the 3M Colorquartz plaster or in its failure to comply with the April 22, 2009 CWO. With respect to the damage to the synthetic turf, Mr. Gilbert’s testimony and Respondents’ evidence undermines the credibility of Complainant’s testimony that he saw Southwestern’s discharge hose leaking onto the damaged area. Because Complainant bears the burden to establish that Southwestern caused the damage to the turf, he also has not established that either Respondent violated any of the charged contracting statutes with respect to the turf. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar dismiss Complainant Bill Chambers’ complaint in Case No. L09-0279 against Respondent Advantage Pool and Spa Plumbing Inc. dba Advantage Pools License No. ROC188584, Class B- 05, Class B-05. It is further recommended that, on the effective date of the Registrar’s final order, the Registrar dismiss Complainant Bill Chambers’ complaint in Case No. L09-0280 against Respondent Gilbert and Beeler Construction Company Inc. dba the Southwestern Pool Co.’s License No. ROC079822, Class B-05. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, January 8, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Workmanship Standards for Licensed Contractors at 40 (February 2009). [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] A.A.C. R2-19-106 and R2-19-119(B)(3); see, e.g., Hawkins v. State of Arizona, Department of Economic Security, 183 Ariz. 100, 103, 900 P.2d 1236, 1239 (App. 1995); Gilbert v. Board of Medical Examiners, 155 Ariz. 169, 174, 745 P.2d 617, 622 (App. 1987). [8] In Arizona, “‘[p]ublic policy dictates that there be an end to litigation; that those who have contested the issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties.’” Lofts v. Superior Court, 140 Ariz. 407, 410, 682 P.2d 412, 415 (1984) (quoting Baldwin v. Iowa State Traveling Men’s Ass’n., 283 U.S. 522, 525, 51 S. Ct. 517, 518, 75 L. Ed. 1244 (1931) emphasis added). The doctrines of res judicata and collateral estoppel apply in most cases only to persons who were named as parties to previous actions. [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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