ALJDEC decisions subject to certification as final

2008A-9170907-ROC-com · Registrar of Contractors · 2011-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2011

APPEARANCES: Complainants appeared and were represented by attorney Michael A. Schern; Respondent was represented by attorney Brigham A. Cluff, accompanied by Respondent’s corporate President and Qualifying Party Sean Alexander.

WITNESSES: Randy Cason, ROC Inspector Sean Alexander Amil Fornatora, Expert Witness for Complainant Bill Duncan, Expert Witness for Respondent Michael Braegger

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set by the Registrar of Contractors as a second compliance hearing to determine whether Respondent is in compliance with an Order issued by the Registrar of Contractors in August 2010. That Order required Respondent to perform corrective work outlined in a prior order. Respondent claims that it is in compliance with the August 2010 Order. Complainant denies that Respondent is in compliance. Procedural Background On April 16, 2009, the Registrar of Contractors (“ROC”) issued an Order adopting an Administrative Law Judge Decision that recommended corrective work on a catch basin under a negative edge on Complainants’ pool. Thereafter, the ROC set the case for a compliance hearing, which was held on July 7, 2010. This resulted in the issuance of another Order, dated August 12, 2010, that found non-compliance and ordered the immediate suspension of Respondent’s license until the corrective work was completed. On July 28, 2011, in response to motions submitted by both parties, the ROC ordered that a compliance inspection be performed and a finding be made by the Inspector regarding compliance. An inspection was performed and on August 29, 2011, the ROC issued an Order Lifting Suspension and Setting Compliance Hearing. On September 8, 2011, the ROC issued a Notice of Compliance Hearing setting the date for a second compliance hearing, which was held on the date above. Introduction The ROC’s Order Lifting Suspension and Setting Compliance Hearing and Notice of Compliance Hearing state that the compliance hearing is to determine whether or not Respondent has complied with the August 12, 2010, Order: IT IS ORDERED that a second Compliance Hearing be scheduled in the expedited course of docketing in the Phoenix area. At the Compliance Hearing, the parties’ may offer evidence and testimony as to whether or not Respondent has complied with the terms and conditions of the Registrar’s August 12, 2010 Order issued in this matter. If it is determined that Respondent has failed to fully comply with the Registrar’s written directives, absent unreasonable interference or denial of access by Complainant, then Respondent’s B-5.212320-R License shall be subject to the immediate imposition of discipline. If it is determined that Respondent has fully complied with the terms of the August 12, 2010 Order or that Complainants have unreasonably interfered or denied access to Respondent or its representatives in their attempt to comply with the Registrar’s August 12th Order, then Respondent’s license shall not be disciplined and the matter shall be closed as Respondent having fully complied with the terms of the Registrar’s Order.[1]

This tribunal entered the complaint file received from the Registrar of Contractors into the record, which includes documentation relating to the underlying complaint and relating to the first compliance hearing. In addition, Respondent submitted Exhibits A through E, which were admitted into evidence. The parties presented testimony from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent is in compliance. FINDINGS OF FACT 1. Respondent is the holder of license B-5.212320-R, a general residential contracting license issued by the ROC, authorizing Respondent to construct and repair pools and spas. Sean Alexander is Respondent’s Qualifying Party. The license was suspended in this matter until it was lifted on August 29, 2011 in the Order Lifting Suspension and Setting Compliance Hearing. 2. Respondent built a negative edge on one portion of Complainants’ pool. Water will fall over that edge when the waterline is higher than the edge. The water falls into a catch basin that is several feet below the negative edge. After a contested hearing on March 4, 2009, in which one of the claims was that the catch basin for the negative edge on the pool was too small, an Administrative Law Judge Decision was issued with the following Finding of Fact: 11. Kevin Woodhurst, an expert in the pool industry, testified on behalf of the Braeggers. See Exhibit 1. Mr. Woodhurst testified that the pool is “beautiful”, however, Blooming Vista failed to comply with pool industry standards when it constructed the catch basin for the negative edge at 2 ½% of the size of the pool, rather than the required 10% to 12% of the pool size. Mr. Woodhurst testified that the only remedies available for curing this deficiency are to either increase the size of the catch basin or to install a surge tank. Mr. Woodhurst further testified that the pool is not functional as the catch basin is too small for the pool size, that the pool pump would need to be operating when the pool is in use, and that it is the contractor’s responsibility to ensure that the capacity of the catch basin will accommodate the reasonable use of the pool. In the case of the Braeggers’ pool, the catch basin should have a surge capacity of 800 to 1,000 gallons, not the current 235 gallon surge capacity. Mr. Woodhurst testified that there is a 25 to 30 gallon displacement of water per person just in getting into a pool, not taking into account splashing and playing. If the Braeggers were to have a pool party with 20 people in the pool, that would result in an approximate 500 gallon surge into the present 235 gallon catch basin. The pool pump can only drain 80 to 100 gallons from the basin per minute. Mr. Woodhurst testified that the catch basin as constructed is 18 square feet, however, it should be 50 to 60 square feet based upon the size of the pool.

The ALJ Decision concluded that the catch basin did not meet workmanship standards because it was too small. 3. The ALJ Decision recommended the following order: On the effective date of the Order entered in this matter, Blooming Vista’s Class B-05 license (No. 212320) shall be suspended until the ROC receives written proof that Blooming Vista has performed either of the following options to be chosen by the Braeggers:

i. enlarging the catch basin to accommodate the size of the Braeggers’ pool; or ii. installing a separate surge tank.

That order was adopted by the ROC on April 16, 2009. 4. After a contested compliance hearing on July 7, 2010, an ALJ Decision was issued finding Respondent out of compliance and recommending revocation of the license. By Order dated August 12, 2010, the ROC adopted the Administrative Law Judge’s finding of non-compliance but did not impose revocation. Instead, the ROC imposed immediate suspension of Respondent’s license and ordered that the catch basin be corrected in accordance with the original order. Respondent’s license was then suspended from August 13, 2010, to August 29, 2011. 5. On August 4, 2011, ROC Inspector Randy Cason conducted an on-site inspection of the pool and catch basin. Representatives for both parties were present. When the Inspector arrived he found the catch basin had been drained by Complainants. He inspected the catch basin and found that it had been enlarged by Respondent and that it met workmanship standards. He was not able to test if the catch basin was working because it was empty, but he found that Respondent had complied with the order to enlarge the catch basin to accommodate the size of the Complainants’ pool.[2] 6. Based on Inspector Cason’s findings, the ROC lifted the suspension of Respondent’s license and set the matter for compliance hearing because Complainants disputed that Respondent was in compliance. 7. At hearing, Inspector Cason testified in support of his findings. He had taken measurements of the catch basin, and according to his measurements, he estimated that the enlarged catch basin holds 672 gallons of water.[3] He testified that Respondent was in compliance. 8. Sean Alexander, Respondent’s Qualifying Party and corporate President, testified that he calculated the catch basin’s capacity at 777 to 846 gallons. He testified that Inspector Cason had forgotten to take into account the water that is falling over the negative edge. Since the amount of water falling over the edge varies at any given time, Mr. Alexander’s estimate has a range. 9. Amil Fornatora is an expert consultant that Complainants hired to inspect the catch basin and give his opinion about it. Mr. Fornatora measured the basin and estimated that the catch basin will hold about 723 gallons of water. He opined that the catch basin was not in compliance, based solely on his conclusion that Kevin Woodhurst, the expert witness in the original hearing, had testified that 800 gallons was the minimum needed to meet workmanship standards. Mr. Fornatora admitted that he had no independent expertise in pool catch basins, but relied solely on the opinion of Kevin Woodhurst as stated in Finding of Fact 11 from the original hearing and decision. 10. Complainant Michael Braegger, DMD, testified that he measured the capacity of the catch basin by using hoses hooked to his home to fill it, while making sure that no other water was being used in the home, and reading his water meter before and after. He found the capacity to be 750 gallons. 11. Finally, Sean Alexander testified that he had two choices in enlarging the catch basin: he could make it deeper or make it wider.[4] He chose to make the basin deeper so as to minimize intrusion on the pool’s deck space. The Administrative Law Judge finds that decision to be reasonable. 12. Based on the greater weight of the credible evidence, the enlarged catch basin works as intended and is large enough to accommodate the pool. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] Here, the ROC has already lifted the suspension based on a preliminary finding of compliance. Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has failed to comply with the April 16, 2009 and August 12, 2010, Orders.[7] Complainants have not met that burden. 2. Although Complainants argue that to be in compliance the catch basin must hold at least 800 gallons, the original order does not require a specified capacity. The order with which Respondent must comply states that Respondent is to “enlarge the catch basin to accommodate the size” of the pool. The evidence shows that Respondent has done so, whether or not the capacity is 800 gallons. 3. Respondent has complied with the ROC Orders. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors confirm the prior finding that Respondent Blooming Vista Pools and Spas, Inc. is in compliance and close this matter.

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 40 days from the date of that certification.

Done this day, November 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Order Lifting Suspension and Setting Compliance Hearing at 1. [2] Job Inspection Notes dated 08/04/2011. [3] The parties agree that the initial catch basin held 235 gallons. [4] A third choice, a combination of both deeper and wider, was also available. [5] Arizona Administrative Code (A.A.C.) R2-19-119(B). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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