ALJDEC decisions subject to certification as final

2011A-1846-ROC · Registrar of Contractors · 2011-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2011 APPEARANCES: Complainant Clyde Walters appeared on his own behalf. Wayne Malone appeared on behalf of Respondent Neat Pool and Supply, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Neat Pool and Supply, Inc. (“Neat”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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. Neat is the holder of a Class KA-5 license (No. 162022) issued by the Registrar of Contractors (“ROC”). Wayne Malone is Neat’s qualifying party and a corporate officer. 2. Complainant Clyde Walters contracted with Neat for Neat to install a new vinyl liner in Mr. Walters’ pool. According to the filed complaint, the contract date was November 27, 2009, the contract price was $3,850.86, which Mr. Walters paid in full to Neat, and the work was completed by Neat in March 2010. 3. A few months after installation of the liner, Mr. Walters began to notice wrinkling and fading of the liner. Mr. Walters contacted Neat to express his concerns. Neat responded by advising that Mr. Walters’ pool service was utilizing too much chlorine resulting in the fading. Neat offered to give Mr. Walters a new liner. However, Neat would not install it. 4. On March 28, 2011, Mr. Walters filed a complaint against Neat with the ROC alleging, “rocks under the liner, liner is fading in spots, chlorine damage to steps from float basket, was not informed to tye [sic] off the float, and pool has a leak.” 5. ROC Inspector Cliff Corlett investigated Mr. Walters’ complaint. 6. On April 6, 2011, Inspector Corlett conducted a jobsite inspection. Mr. Walters, Mr. Malone, and Sabine Mohr, Mr. Walters’ pool service technician, attended the jobsite inspection. 7. On April 8, 2011, Inspector Corlett issued a letter advising the parties that after investigation, the ROC has determined the following: Complaint issues (allegations) underlined: 1. Rocks under the liner. Registrar of Contractors (ROC) ***** The Respondent (R/P) stated that he was made aware of the foreign material prior to this complaint being filed and agreed to correct. R/P states he requested to wait until warmer weather so as to minimize the damage [/] danger to the liner as it is easier/safer to work with the vinyl liner when it is warmer and more pliable. R/P’s request to wait for warmer weather to effect repairs seems reasonable and prudent. The parties should agree that R/P will return as soon as weather permits and remove the foreign matter from under the liner. If R/P fails to return as weather permits, then this case should be re-opened with a request for an Administrative hearing.

2. Liner is fading in spots. ROC ***** The manufacturers [sic] warranty (copy attached) specifically excludes any warranty for “notable changes to or fading of decorative print”. The ROC Workmanship Standards for Licensed Contractors states that a contractors [sic] responsibility for manufactured products properly installed is limited to the manufacturers [sic] warranty. There is/ was no evidence presented to show that the R/P in any way improperly installed the pool liner. The manufacturers [sic] literature also indicates that improper water chemistry can cause and [/] or contribute to premature liner fading and wrinkling. Per statement made at the onsite inspection the R/P has had no active roll [sic] in any chemicals added to the pool water since the new liner was installed. All water chemistry was under the control of the Complainant (C/P) through his chosen pool maintenance company. NO CONTRACTOR ACTION REQUIRED.

3. Chlorine damage to steps from float basket. ROC ***** The Manufacturers [sic] “Care and Maintenance” literature (copy attached) states “Never let chlorine come into contact with the liner before it is fully dissolved. This means that granular or tableted chlorine is dissolved first in a bucket of water, etc.” Although this instruction document does not specifically state not to use an automatic pool chlorinator “float basket” it does say to fully dissolve granular or tablet chlorine in a bucket before introducing it into the pool. This method would preclude the use of a “float basket”. Also, per on site statements by C/P, the R/P has never had any active roll [sic] in the chemical treatment of the pool water. NO CONTRACTOR ACTION REQUIRED.

4. Was not informed to tie off the float. ROC ***** Pool water chemistry was never a responsibility of the R/P. C/P was supplied with the manufacturers [sic] literature on the warranty and care & maintenance. NO CONTRACTOR ACTION REQUIRED.

5. Pool has a leak. ROC ***** No leak demonstrated. R/P stated he performed a standard “bucket test” and the water level in the bucket in the pool and the bucket fell equally indicating no leak. NO CONTRACTOR ACTION REQUIRED.

(Emphasis in original.) The ROC determined that it would not issue a citation against Neat. 8. Inspector Corlett testified consistently with the findings delineated above. Inspector Corlett further testified that he conducted a pre- hearing inspection on September 7, 2011, at which Mr. Walters and Mr. Malone were present. Inspector Corlett testified that it appears as though the liner has continued to fade where there is padding underneath the liner. Inspector Corlett testified that at the initial jobsite inspection, the fading was located in the deep end of the pool, but has progressed into the shallow end and has increased in the deep end. Inspector Corlett opined that the fading is due to a chemical reaction between the water, the liner, and pad underneath the liner. Inspector Corlett testified that the fading is exactly in line with the pad. Inspector Corlett testified that because Neat’s scope of work was limited to installing the liner and Neat had no responsibility for adding chemicals to the pool, Neat was not responsible for the fading of the liner. Inspector Corlett testified that the liner was properly installed by Neat. 9. Ron Barckley, Mr. Walters’ former pool service technician, testified at the hearing. Mr. Barckley testified that he had been Mr. Walters’ pool service technician for three to four years before selling his route to Ms. Mohr. Mr. Barckley testified that he had never had any problems with chlorine and that the old liner had faded throughout and was coming out of its track. Mr. Barckley testified that if Mr. Walters’ pool had as much chlorine in it as Neat was alleging, it would be unfit for swimming and one would be able to smell the chlorine. Mr. Barckley opined that if chlorine were causing the fading, the fading would be more erratic. Mr. Barckley acknowledged that he has not tested the chlorine levels in the pool since the new liner was installed because Ms. Mohr has taken over the route. Mr. Barckley testified that he used to tie off the floater in the pool prior to the liner being replaced because he did not want the floater lying on the pool steps. This would have caused wrinkles and fading in the liner. 10. Ms. Mohr testified that she did not tie the floater off initially when the liner was installed in March 2010. However, in July 2010, she began to tie the floater off at the deep end of the pool. Ms. Mohr acknowledged that because the pool pump only ran for eight hours a day, prior to tying the floater off, the floater could have been stuck on one of the steps for as long as sixteen hours. Ms. Mohr testified that she maintains a detailed log of the Ph and chlorine levels of the pools she services. However, Ms. Mohr acknowledged that she does not record the Ph levels if they are consistently low. Ms. Mohr further acknowledged that the first day she serviced the pool after the new liner was installed, she made a mistake by using crushed chlorine tabs and liquid chlorine. Ms. Mohr also acknowledged that Mr. Walters’ pool is the only one with a vinyl liner that she has serviced. 11. Mr. Malone testified that Neat resolved the issue of the rocks under the liner by pulling the liner back and removing the objects in areas of concern as pointed out by Mr. Walters. Mr. Malone testified that two rocks and three pieces of hard foam were removed. 12. Regarding the alleged leak in the pool, Mr. Malone testified that he performed a “bucket test” wherein water was placed in a bucket and the water level was marked. The water level in the pool was also marked off. After 24 hours, the water levels in both the bucket and pool were compared and the water levels decreased by the same amount. Mr. Malone acknowledged that normally the bucket is placed on the first step of the pool, rather than outside of the pool. Mr. Malone further testified that Neat performed three water analyses on Mr. Walters’ pool, and that all three CYA levels were exactly the same. See Exhibit R4. Mr. Malone testified that CYA is a stabilizer and the only way for it to leave a pool is to remove water. Therefore, because the amount of CYA present in the pool was the same on all three analyses, there was no evidence of water loss. Mr. Walters presented no evidence of a leak other than to state that his water bills are higher than normal. 13. Mr. Malone testified that the liner has faded because the liner has been chemically altered, and that the chemical alteration is reacting with the pad. Mr. Malone contended that if the chemical balance in the pool was proper, the reaction would not be occurring. 14. The Administrative Law Judge finds, based upon the credible evidence of record, that Mr. Walters failed to present probative or substantial evidence that the fading of the pool liner is attributable to work performed by Neat rather than the improper chemical maintenance of the pool water. Neat removed the debris from under the liner. Mr. Walters failed to present any evidence of a leak. CONCLUSIONS OF LAW In this proceeding, Mr. Walters bears the burden to prove, by a preponderance of the evidence, that Neat is subject to discipline for violations of A.R.S. § 32-1154(A)(3) as charged by the ROC in its June 24, 2011 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2- 19-119. 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). The Administrative Law Judge concludes that Mr. Walters failed to meet his burden of proof as to the ROC’s charge. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Neat with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible, probative, and substantial evidence of record failed to establish that Neat failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Neat is not in violation of A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the evidence of record, that no grounds exist to impose discipline against Neat’s license. The ROC’s Citation in Case Number 2011-1846, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Neat’s license, and that the Citation issued in Case Number 2011-1846, together with the Complaint upon which it is based, 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 will be 40 days from the date of that certification. Done this day, September 20, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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