ALJDEC decisions subject to certification as final

2009A-35801161-ROC · Registrar of Contractors · 2010-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2010 at 8:00 a.m. APPEARANCES: Complainant Mark W. Huffer appeared on his own behalf; Respondent Aqua Pools, Inc. appeared through John Norberciak, its qualifying party and president. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On February 14, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC181490, Class B-5 for residential general swimming pool contracting to Respondent Aqua Pools, Inc. On December 23, 2008, the Registrar received a complaint from Complainant Mark W. Huffer about a pool that Respondent had constructed at Complainant’s residence at 8613 E. Pecos Lane, Scottsdale, Arizona. According to the complaint, Respondent had completed construction of the pool on December 24, 2006. The complaint included the following specific items: (1) Three of the therapy jets did not function as intended; (2) The contract required eight therapy jets in the spa, but Respondent only installed six jets; and (3) The contract required two surface skimmers, but Respondent only installed one skimmer. Complainant did not complain that the pool leaked. On January 28, 2009, the Registrar’s inspector, Jeff Fleetham, performed a jobsite inspection. On February 2, 2009, Inspector Fleetham issued a Corrective Work Order (“CWO”), which required Respondent within fifteen days to correct the spa jets so that they functioned as intended and to provide a second surface skimmer. The February 2, 2009 CWO did not mention the two missing spa jets. On March 16, 2009, Inspector Fleetham sent a letter to the parties, informing them that the Registrar closed the complaint because Complainant had not responded to the February 2, 2009 CWO. On November 30, 2009, Complainant requested that the complaint be reopened because Respondent had not installed the two missing spa jets and because, since Respondent performed the work to comply with the February 2, 2009 CWO, the pool had developed a leak. On January 13, 2010, Inspector Fleetham performed a second jobsite inspection. On January 20, 2010, he issued a second CWO, requiring Respondent within fifteen days to correct the “[p]ool water leak in shell, fixtures, or plumbing adjacent to corrective work performed in February and March of 2009.” On February 18, 2010, Inspector Fleetham sent a letter to the parties, informing them that the Registrar again closed the complaint because Complainant had not responded to the January 20, 2010 CWO. On March 12, 2010, Complainant requested that the Registrar again reopen the complaint and schedule a hearing because Respondent had not installed the two missing spa jets and had taken the position that it was not obligated to repair the leak because the leak had occurred beyond the statutory two-year warranty period. On May 24, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2), (3) (namely A.A.C. R4-9-108), and (23). Respondent timely answered the complaint, denying any statutory violations and affirmatively alleging that no leak had occurred during the two-year warranty period. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A hearing was held on August 16, 2010. Inspector Fleetham testified. Complainant testified and submitted eight exhibits. Respondent presented the testimony of two witnesses: (1) Its employee, Armando Balderas, who had been Respondent’s superintendent for the repairs to the pool; and (2) John Norberciak, Respondent’s president and qualifying party. Respondent submitted four exhibits. According to the Registrar’s record, the Registrar suspended Respondent’s license as a result of Case No. G07-2020, but lifted the suspension on November 18, 2008. On the date of the hearing, Respondent’s license was suspended by operation of law after it had voluntarily canceled the license on July 26, 2010. Additional Evidence The contract that Complainant attached to his original complaint required Respondent to install eight therapy jets in the spa. Respondent only installed six therapy jets. Inspector Fleetham testified that the February 2, 2009 CWO did not require Respondent to install the missing two jets through an oversight. Respondent hired Ayala Pool Plumbing, Inc., License No. ROC124800, Class C37R to install the second skimmer that the February 2, 2009 CWO required. In March 2009, after Ayala performed the repairs that the February 2, 2009 CWO required, Respondent sent Erik Davidson of Blue Mist Pools, L.L.C., License No. ROC203103, Class B-6 to inspect the repairs. Mr. Davidson reported that the repairs were “in working condition and in good workmanship.” Complainant pointed out to Mr. Davidson a crack or gap between the cantilevered deck on the west side of the pool, which was not among the original items of complaint. Mr. Davidson reported that he advised Complainant that, after twelve months, such cracks became the homeowner’s responsibility and that Complainant should seal the crack with silicone every one or two years. According the Registrar’s Workmanship Standards for Licensed Contractors (February 2009), after the first year, cracks in grout “are commonly due to normal shrinkage conditions and as such are normal maintenance responsibilities of the homeowner.”[1] Before the January 13, 2010 jobsite inspection, Inspector Fleetham had instructed Complainant to fill the pool before he went to work at 6:30 a.m. At 8:00 a.m., when Inspector Fleetham checked the water level in Complainant’s pool, the pool pump was sucking air and Inspector Fleetham instructed Respondent to turn off the equipment. Inspector Fleetham testified that the water level in the pool was 5-3/4” below the bottom of the cantilevered deck and 2-1/2” below the waterline. Inspector Fleetham testified that when he returned to check the pool at 4:00 p.m. on January 13, 2010, the water level had dropped another 3/8” to 1/2". After Inspector Fleetham issued the January 20, 2010 CWO, Respondent hired El Dorado Pool Plumbing and Remodeling, L.L.C., License No. ROC228185, Class C37R (“El Dorado”), to determine whether any of the repairs that Respondent performed in February and March, 2009, caused the leak. Juan Midanda of El Dorado tested Respondent’s repairs, including the new skimmer and wall returns in the pool and spa, and reported that he found no leaks. Respondent then hired Leak Squad[2] to identify the source and location of the leaks at Complainant’s pool. Leak Squad identified the location of the leak at a broken main drain line under the skimmer that Respondent had constructed in 2006 and at the spa return line on the west side of the pool. Leak Squad’s report noted the crack in the grout line on the west side of the pool that Complainant had pointed out to Respondent’s subcontractor, Blue Mist Pools, L.L.C., in March 2009. In April 2010, Complainant hired Leak Squad to repair the leaks that it had identified in its report to Respondent. According to the invoice that Complainant submitted, the repaired pipe held pressure when Leak Squad tested it. Complainant testified that Leak Squad’s repairs were unsuccessful and that the pool still leaked. Inspector Fleetham performed a prehearing jobsite inspection on August 10, 2010. He testified that Respondent had corrected all the items on the February 2, 2009 CWO. He testified that he did not perform a water test to determine whether the leak noted on the January 20, 2010 CWO had been repaired. Complainant testified at the hearing that Respondent had used a jackhammer on the pool gunite to relocate lights and plumbing after the plumbing had passed the City’s inspection during Respondent’s initial construction of the pool. Complainant believed that this work caused the leak. Complainant testified that the spa was located on the west side of the pool. He believed that Respondent’s repair of the spa jets to make them function as intended exacerbated the leak. Mr. Balderas testified that Respondent’s repair of the spa jets in February and March of 2009 did not involve the water lines to the jets. Mr. Balderas testified that, instead, the repair involved removing the orifices that housed the jets, removing dirt and other debris from the orifices, and reinstalling the orifices. Complainant submitted a photograph of a large crack under the deck on the west side of the pool. As of the date of the hearing, the crack had not been repaired or sealed. Mr. Balderas testified that deck separation like the gap at Complainant’s pool is common in pools with cantilevered decks. Mr. Balderas testified that if a gap is not sealed, water can get behind the gunite, saturate the soil, and cause the plumbing lines behind the gunite to settle, which may result in leaks. Mr. Balderas testified that he always advises homeowners to seal gaps to prevent leaks. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[3] Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] 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.”[7] Complainant established that the contract required Respondent to install eight therapy spa jets and that it only installed six jets. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)[8] and (3)[9] by installing only six spa jets. Applicable Arizona statute requires contractors to warranty their contracting work for two years.[10] Because Respondent completed its original construction of the pool on December 24, 2006, Complainant’s November 30, 2009 complaint that the pool had developed a leak is untimely unless the leak was caused by the repairs that Respondent performed in February and March of 2009. Complainant did not establish that the leak more likely than not resulted from Respondent’s repairs to the pool in February and March of 2009. Instead, Respondent established that the leak more likely than not resulted from Complainant’s failure to repair the gap beneath the cantilevered deck on the west side of the pool. Therefore, Respondent established that Complainant’s November 30, 2009 complaint about the leak is untimely because Respondent performed the work in the area of the leak more than two years earlier. Neither the February 2, 2009 CWO nor the January 20, 2010 CWO required Respondent to install the two missing spa jets. Respondent established that its failure to comply with the January 20, 2010 CWO was justified because Complainant’s complaint about the leak was time-barred. Therefore, Complainant has not established that Respondent violated A.R.S. § 32- 1154(A)(23)[11] in any respect. Respondent’s canceled license currently prevents it from installing or subcontracting to another appropriately licensed contractor installation of the two missing spa jets.[12] RECOMMENDED ORDER In view of the foregoing, it is recommended that, on the effective date of the Registrar’s order in this matter, the Registrar revoke Respondent Aqua Pools, Inc.’s License No. ROC181490, Class B-5 until Respondent has rectified its failure to install the two missing therapy jets in Complainant Mark W. Huffer’s spa. It is further recommended that the Registrar not revoke Respondent’s license but, instead, close Case No. 2009-35801161 if, on or before the effective date of the order, the Registrar receives satisfactory proof in writing from the Respondent of either one of the following: 1) Respondent has reinstated its contractor’s license and has installed two additional therapy jets in Complainant’s spa in a professional and workmanlike manner; or 2) Respondent has resolved its failure to install the two missing therapy jets to Complainant’s satisfaction through a monetary settlement. 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, September 1, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Workmanship Standards for Licensed Contractors at 36 (February 2009). [2] Although Mr. Norberciak testified that Leak Squad was licensed and bonded, the Administrative Law Judge did not locate any license for Leak Squad on the database at the Registrar’s website. [3] See A.R.S. § 32-1101 et seq. [4] 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). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [9] 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 cited 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.” [10] See A.R.S. § 32-1155(A), allows the Registrar to investigate claimed contracting law violations and, if violations are found, discipline a contractor’s license “[u]pon the filing of a written complaint charging a licensee with the commission, within two years prior to the date of filing the complaint,” of the contracting law violation. [Emphasis added.] [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.” [12] See A.R.S. §§ 32-1101(A)(7) (defining “residential contractor” as anyone who does himself or through others construction that requires a contractor’s license) and 32-1151 (making it unlawful for any person to engage in contracting without “a contractor’s license in good standing”).

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