ALJDEC decisions subject to certification as final

2013A-3095-ROC · Registrar of Contractors · 2016-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2015, at 8:00 a.m. APPEARANCES: Debra Kilgore (hereinafter “Complainant” or “Ms. Kilgore”) appeared on her own behalf. Lake Havasu Gunite and Concrete LLC (hereinafter “Respondent”) appeared through its president, Bart F. Wolterman (hereinafter “Mr. Wolterman”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR-9.193063-D. Respondent’s License is current. On June 26, 2013, Complainant filed a written complaint with the Registrar. The written complaint charged Respondent with eleven (11) different items of poor or deficient workmanship on a swimming pool, spa, outdoor kitchen and fountains constructed at Complainant’s mother’s residence at 7804 Riverside Drive., Parker Arizona (hereinafter “residence”). Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. During the first jobsite inspection the Respondent agreed to re-plaster the swimming pool.[1] On September 20, 2013, the first written Directive was issued by the Registrar. The first written Directive provided, in relevant part, as follows: Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter:

1) No auto-fill on spa. ****Respondent agreed at inspection to properly correct. 2) Outdoor kitchen no plumbed. ****Respondent (R) agreed at inspection to complete. 3) Floor cleaner stays up in spa. ROC*****In floor pop-up cleaner heads are a factory warrantied item and are covered by that warranty….This is normal homeowner maintenance. 4) Spa (control) needs to be reprogramed and labeled. ROC***** The spa mounted control panel appeared to be labeled and functional. In conjunction with #10 below it appear that there needs to be some re-configuration and or addition of electrically controlled valves at the poll equipment area to allow the Homeowner to properly control the pool, spa, fountain and heater functions from the control panel. 5) Heater does not work. ROC*****Respondent agreed at inspection to rework heater/controls/valves so heater can be controlled from spa control panel. 6) Electrical and plumbing exposed. ROC*****Parties stated this was corrected prior to inspection. 7) Do (did) not get finish (final) inspection. ROC*****The contractor is responsible to ensure that all of his contracted work is proper and meets all codes and regulations, however in this Inspector’s experience local building authorities will not sign off and final a pool project until all local pool enclosure requirements are met. As the Respondent did not contract for or provide the pool enclosure the homeowner is responsible for the compliant enclosure. 8) Rock waterfall in driveway cracked/leaks. ROC*****Parties stated that the fountain had been repaired prior to the on- site inspection. 9) Large mosaic in floor of pool is missing. ROC*****Contact call for “large mosaic” in pool (Handwritten). “Large mosaic” is not very descriptive of what size or shape or pattern this application is/was to be. Respondent should properly provide the contracted “large mosaic.” 10) Rock waterfall and Heater do not turn on at touch system; you have to manually turn them on at the pool equipment. ROC*****See #4 above. 11) Rust coming through the plaster in pool and spa. ROC*****Respondent should determine cause and correct by appropriate means.

On May 11, 2015, the Registrar issued a second written Directive. The second written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means: The following shall be completed per this Written Directive:

On 04/29/2015 this office informed all parties by U.S. mail that there would be an additional onsite inspection regarding the leaking spa/piping that the Complainant first reported to the Registrar by email on July 7, 2014. Since the completion date of the pool is listed as November 2012 this would still fall under the Registrar’s jurisdiction. Upon arrival at the job site this Investigator was informed that the leak had been corrected by the Respondent, however now the concrete decking next to the pool in the area where the Respondent had to excavate to do the repairs is sinking and moving away from the pool. RESPONDENT SHOULD DETERMINE CAUSE AND CORRECT BY APPROPRIATE MEANS.

Complainant alleged that Respondent failed to comply with the terms of the written Directives and requested that a citation be issued against Respondent’s license. On July 16th, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

2: A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”).

Testimony The assigned Registrar Investigator, Cliff Corlett (hereinafter “Investigator Corlett”), testified that he had performed the initial onsite inspection. Investigator Corlett stated that he performed an onsite compliance inspection on June 6, 2014. Investigator Corlett said that it was his opinion that Respondent had complied with the most of the items of the first written Directive. Investigator Corlett said that the remaining item at issue related to item no. 5 the spa heater. Investigator Corlett said that the heater did match the contract but did not heat the spa satisfactorily. Investigator Corlett testified that a broken pipe under the concrete decking was added as an addendum item and that he performed a second onsite inspection regarding the broken pipe. Investigator Corlett stated that a second written Directive was issued on May 11, 2015, for the addendum item. Investigator Corlett said that he conducted a prehearing inspection on December 18, 2015. Investigator Corlett said that Respondent had not complied with the terms of the second written Directive. Investigator Corlett said that nothing had been done to change the heater and that the concrete decking/sidewalk was still settling and had not been corrected. Investigator Corlett said that the main issue presented at the compliance inspection was the staining of the plaster in Complainant’s pool. Investigator Corlett said that the only item in the complaint concerning staining was item no. 11 concerning rust in the pool plaster. Investigator Corlett said that there were some minor rust spots that Respondent took care of. Investigator Corlett testified that the minerals in the water caused the staining in Complainant’s swimming pool and spa. Investigator Corlett said that the staining in the pool/spa was never an item set forth in the complaint form. Investigator Corlett said that Respondent’s representative said that Respondent was going to re-plaster the swimming and that since the pool was going to be re-plastered it was not an issue at the jobsite. Investigator Corlett testified that the heater did not properly heat the spa. Investigator Corlett said that Complainant was unwilling to have a propane unit installed to heat the spa. Investigator Corlett said that the heater was not fulfilling its intended purpose. Investigator Corlett testified that the concrete walkway and decking next to the pool in the area where the Respondent had to excavate to do the repairs is sinking and moving away from the pool. Investigator Corlett said that Respondent is responsible for the condition and should take appropriate corrective action to correct the situation. Investigator Corlett’s testimony is found to be credible. Brandon Kilgore (hereinafter “Mr. Kilgore”) testified that he is Complainant’ son. Mr. Kilgore stated that the main issue is the discoloration is the staining of the pool plaster. Mr. Kilgore said that the secondary issues are the heater and settlement of the decking. Mr. Kilgore said that Respondent has acid washed the pool plaster three times which has caused deterioration in the pool plaster. Mr. Kilgore acknowledged that Respondent may have acid washed the pool twice rather than three times. Eleanor Stephan (hereinafter “Ms. Stephan”) testified that she is Complainant’s mother and the owner of the residence. Ms. Stephan said that the heater never heats the water over 70 degrees in the spa and pool. Ms. Stephan said that the pool plaster is black. Ms. Stephan said that the pool plaster has been discolored since the beginning. Ms. Stephan said that Respondent’s work was very, very poor. Ms. Stephan’s testimony is found to be credible. Ms. Kilgore testified that the main issue in her complaint is the condition of the swimming pool plaster. Ms. Kilgore said that she and her mother had paid over $130,000.00 for the construction project and were very unhappy with the results. Ms. Kilgore said that Respondent put in a heater that does not heat the pool. Ms. Kilgore said that Respondent was supposed to install pebble-tech or pebble-sheen and that Respondent put in plaster instead. Ms. Kilgore said that the plaster is extremely discolored. Ms. Kilgore said that Respondent agreed to replace the swimming pool plaster with the agreed upon pebble sheen product but failed to comply with its agreement. Ms. Kilgore said that her mother provided Respondent with a photograph of the mosaic that was to be installed in the pool. Ms. Kilgore said that Respondent installed a much smaller mosaic than the one shown in the photograph. Ms. Kilgore said that the heater valves have not been changed and the heater does not heat the spa. Ms. Kilgore said that it never even reaches 70 degrees. Ms. Kilgore says she installed a cover over the spa and that it still does not get hot. Ms. Kilgore testified that the area where the Respondent had to excavate to do the repairs is sinking and moving away from the pool. Ms. Kilgore said that the pipes at the pool equipment still leak. Ms. Kilgore’s testimony is found to be credible. Mr. Wolterman testified that he contracted with Complainant to build a pool. He thought everything was going well. Mr. Wolterman stated that he bought the company from his brother in 2007. Mr. Wolterman said that the ROC would not give him a license for an extended period of time to get his license. Mr. Wolterman said that he worked with his brother and he and his brother utilized his brother’s license until Mr. Wolterman obtained his license. Mr. Wolterman testified that Complainant has a bad manganese problem which causes the discoloration of the swimming pool plaster. Mr. Wolterman stated that Complainant has spent a large amount of water to resolve the problem. Mr. Wolterman said that the swimming pool was completed in 2012. Mr. Wolterman agreed that the swimming pool was badly stained. Mr. Wolterman testified that the electric heater was installed in accordance with the parties’ contract. Mr. Wolterman said that the electric heater will not work like a gas heater. Mr. Wolterman said that electric heater only heats the spa. Mr. Wolterman said that if the heater was not heating the spa over 70 degrees it was not working properly. Mr. Wolterman said that he would be more than happy to put another electric heater on the pool. Mr. Wolterman said that Respondent did install a large mosaic in the swimming pool. Mr. Wolterman said that Complaint agreed to the installation of quartz plaster instead of the mini-pebble specified on the parties’ contract. Mr. Wolterman acknowledged that Complainant did not sign-off on the contract change from mini-pebble to quartz. Mr. Wolterman asserted that Complainant accepted the quartz plaster because Complainant paid Respondent for the plastering job. Mr. Wolterman denied that Respondent had agreed to re-plaster the pool. Mr. Wolterman Mr. Wolterman testified that Respondent constructs over 100 pools a year and tries to take care of its customers. Mr. Wolterman stated that Respondent corrected the leaking pipe. Mr. Wolterman said that he agreed that the sinking concrete had not been repaired. Mr. Wolterman said that the sinking concrete had not been repaired because Complainant wanted the swimming pool re-plastered before the sinking concrete was repaired. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence.[3] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Investigator Corlett credibly testified that the Respondent agreed to re- plaster the swimming pool during the first onsite inspection and that the Respondent failed to comply with its agreement. Investigator Corlett testified that the heater did not properly heat the spa. Investigator Corlett said that the heater was not fulfilling its intended purpose. Investigator Corlett testified that the concrete walkway and decking next to the pool in the area where the Respondent had to excavate to do the repairs is sinking and moving away from the pool. Investigator Corlett said that Respondent is responsible for the condition and should take appropriate corrective action to correct the situation. Complainant credibly testified that Respondent was supposed to install pebble-tech or pebble-sheen and that Respondent put in plaster instead. Ms. Kilgore said that the plaster is extremely discolored. Ms. Kilgore said that Respondent agreed to replace the swimming pool plaster with the agreed upon pebble sheen product but failed to comply with its agreement. Mr. Wolterman acknowledged that Complainant did not sign-off on the contract change from mini-pebble to quartz. Complainant established by a preponderance of the evidence that Respondent’s work on Complainant’s swimming pool and spa failed to comply with applicable minimum workmanship standards and that Respondent failed to comply with the terms of the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32- 1154(A)(3) and A.R.S. § 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. CR- 9.193063-D of Respondent be suspended for a period of five (5) days. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). 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 contractors’ licenses 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. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, January 6, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See 4/29/15 Compliance Jobsite Inspection Notes in Electronic file. [2] A.R.S. § 32-1154(A). [3] A.A.C. R2-19-119. [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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