ALJDEC decisions subject to certification as final

2017A-3336-CHC-ROC · Registrar of Contractors · 2018-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tariq Abdalla Mohamed

COMPLAINANT

-v-

Tribal Waters LLC

License No's. 224021, 251147

RESPONDENT

No. 2017A-3336-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 24, 2018

APPEARANCES: Tariq Abdalla Mohamed, Complainant, Tina Garcia, joint

owner of Complainant residence, Robert Viallalobos , Complainant witness,

Roger Foote, Complainant’s attorney, Joe Brown, Respondent, Robert Recio,

Respondent’s Field Supervisor, Alan Shelton, Shelton Consulting Group, Respondent witness, Kaitlin Reyes, Respondent’s Office Manager, Matt Gunstra, Inspector, Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, Tribal Waters LLC, [hereinafter, “Tribal”] is the holder of License numbers. 224021, 251147 issued by the Arizona Registrar of Contractors [hereinafter “ROC”].

On or about June 2, 2016 Tariq Abdalla Mohamed, [hereinafter “TAM”] and Tribal entered into a written agreement whereby Tribal would provide construction labor, equipment, materials and services related to the construction of a residential swimming pool, spa and certain described water features at TAM’s residence located at 1568 E. Tierra Court in Gilbert Arizona in exchange for payment.

On June 27, 2018 the Registrar received a Complaint against Tribal from TAM alleging poor workmanship regarding 20 separate items. By the date of the Job Site Inspection [hereinafter, “JSI”] conducted on July 24, 2017, the total of items TAM alleged had risen by subsequent amendment to the Complaint to 70 separate items.

The Registrar assigned the complaint to Investigator Matt Gunstra. On or about July 24, 2017, after a jobsite inspection, Investigator Gunstra issued a Written Directive to Tribal that provided as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 9/29/17.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 7: Damages by GC of Owners Brand New Appliances, Brand New Granite, Landscaping Lines, SS Sink

Directive: Respondent shall correct by appropriate means damaged outdoor kitchen appliances/appurtenances and outdoor kitchen countertops damaged during installation. Landscape lines not included in this directive. See highlighted section below regarding out of scope work.

Complaint Item 12: Leaks in Kitchen sink after Joe Brown's neighbor (unlicensed) installed kitchen faucet at outdoor sink which GC also forgot to run a drain to the sink and tried to say that drain wasn't included in our outdoor sink package ...

Directive: Respondent shall correct by appropriate means installed sink faucets that leak. See highlighted section below regarding out of scope work.

Complaint Item 22: Salt Cell Installed for our size of pool (40,687.5 gallons per our original signed contract with Tribal Waters) needs to be correct size for the size of pool we had built as the current salt cell (per Pentair) is inadequate for this size of pool.

Directive: Respondent shall inspect and determine cause of water quality issues as it relates to pool construction. No information has been provided to date regarding the required salt cell size as compared to the installation.

Complaint Item 26: Pavers continue to pool water and 1 section remains moist even when there is no rain or source of water above it. Grading and drainage need to be corrected. Needs verification of no water leakage below installed pavers. The areas that incur moisture when there is no water being applied to them are areas that should not have any water source below it.

Directive: Modification of the rear patio pavers has resulted in water running towards and collecting at the house foundation. Water run off should be directed to an approved location and be terminated appropriately...

Complaint Item 33: Pentair System has not been working at all since July 12, 2017. This has been an ongoing issue since it was installed and programmed by Tribal Waters and has never worked consistently or without issues. Per Tribal Waters instructions on how to trouble shoot this problem by resetting the breaker, this is also no longer a solution to this problem. The physical remote as well as the app for phones will not allow turn on/off of any of the water features programmed including waterfall, slide, lights in backyard, spa jets, spa spillover, fire accents, etc.

Directive: Respondent and/or product manufacturer representative shall diagnose and correct cause of system malfunction

Complaint Item 36: Appliances installed in Ramada were never sealed and when water gets on top of counters, the water leaks/pours through the sides of the appliances and underneath and inside the counters.

Directive: No manufacturer literature has been provided that indicates sealing the appliances is required, however, water that enters into the island cavity must be able to exit and not pool...

Complaint Item 42: Ramada plumbing for sink and in counter ice bin to be properly installed and/or repaired by a licensed plumber. Current installation is not functioning properly.

Directive: See Complaint Item #12

Complaint Item 45: Replacement of both granite counters under Ramada where Tribal Waters Pavers used incorrect tools to jaggedly cut around built in appliances.

Directive: See Complaint Item #7

Complaint Item 47: Replacement of Dented Burner caused when installed by Tribal Waters.

Directive: See Complaint Item #7

Complaint Item 48: Replacement of Outdoor Sink due to scratches and dent caused when installed by Tribal Waters.

Directive: See Complaint Item #7

Complaint Item 49: Replacement of Alfresco Grill since it was dropped by Jason upon install with Tribal Waters and the smoker burner has never been operable.

Directive: See Complaint Item #7

Complaint Item 51: Broken pockets of bead Crete in spa need to be refinished/repaired to avoid injuries and unsafe swimming.

Directive: Any irregular areas of plaster should be corrected by appropriate means. Clump of grout near underwater seat should be corrected as well.

Complaint Item 64: i) Floor of spa was polished, but didn’t correct issues and sharp areas where injuries keep occurring. Needs to be repolished or repaired.

Directive: See Complaint Item #51.

On October 04, 2017, Inspector Gunstra received e-mail from Tribal with an attachment showing TAM and Tribal had initialed and signed off on each of the listed items in the CWO indicating that the items had been complied with.

On December 13, 2017 The Registrar issued a Citation against Respondent, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and possible violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action)

A hearing was held on April 24, 2018.

Investigator Gunstra testified that at the compliance inspection on November 22, 2017, Tribal had corrected each item of the CWO items with the exception of item 26. In item 26 Tribal was directed to locate the source where there appeared to be an issue where wet spots were appearing around some areas of paver and some areas of dirt and cause the leaking to stop. He said the site still experienced moisture around pavers and on soil. He said that the only matter causing his request for the Citation to be issued was the issue of water seeping in areas of the back yard and that all other matters listed in the CWO were resolved. Mr. Gunstra stated that he was not an expert in detecting water leaks and does not know if the moisture is originating with the pool shell, the spa shell or the spa plumbing. He said he could not rule out that the source of water was from TAM’s neighbor’s yard – but it could be possible; he could not rule out that the soil may have been wet before construction started and he was unable to rule out whether irrigation on the property was causing water to seep. He did note that the written agreement between the parties states that TAM, and specifically not Tribal, was responsible for the installation and condition of all landscaping and irrigation systems. He also noted that he was aware the Tribal has itself conducted thorough leak testing [bucket test, tape test and a pressure test] with results being negative for leaks of the pool or spa. He also was aware at the time of the Compliance Inspection that Tribal hired a professional leak detecting company to check Tribal’s pool, spa and installed plumbing and the leak detecting company’s testing indicated a negative for any leaks. Mr. Gunstra summarized in stating that the Respondent has done work on the CWO, but it has not solved the water issue per the CWO.

Complainant’s opening statement asserted there is only one issue in this case: What is the cause and location of water leaking on the property? Before Tribal’s work started, there was no water seepage on the property. After Tribal’s work, there is water weeping up from the ground. Complainant TAM testified that after the job he hired Tribal for was completed, he noticed water spots on the soil in various location around the construction area and noticed water seeping up onto the pavers surrounding the spa. He stated that as Tribal’s employees inspected the site for leaks, one employee indicated that he found a gap between the coping and the base of the pool. TAM said repairs were attempted of the gap by Tribal and the repair corrected the problem significantly. But, now he states, water is still present and never went away. He said he turned off the location’s irrigation system for six days, and drained the pool for 3 days, yet the water did not go away. He admits that the initials and signature signing off on his approval for each of the CWO items were his initials and signature.

Complainant’s witness, Tina Garcia, is a joint owner with TAM of the property where Tribal contracted to do its construction in this case. She said dark spots on the soil were discolored, but not wet. She said that Tribal did run a new drainage line on the site that funneled water off property onto the street. Still, she said, the water seeping up from pavers was a problem that was never fixed. She said she is unable to provide testimony about soil or water conditions before or during construction because she did not witness the construction phase. She first noticed water seeping after swimming pool was filled. She was not able to remember how long after the pool was filled that she first noticed water seeping.

Robert Viallobos, testified for the Complainant and stated he was a member and qualifying party for Diablo Pools. He testified that he has 18 years of experience constructing water features, excavation and swimming pools. He stated that if he were attempting to locate whether and where a leak existed on this site, he would pressure test the system, observe and conclude by deduction if and where a leak is. He said he doesn’t know if there is a leak from the pool or from the spa. He said he does not know where the leak is. He said he would hire a leak detection company to test the systems and if the leak tests were negative, it would help me to deduce the cause of a leak. If the tests were negative, it would help me exclude the pool and spa. Finally, he testified that in order to “chase a leak”, I would have to dig.

Testifying on behalf of Tribal, Alan Shelton, a forensic construction consultant for approximately 15 years, was accepted by the tribunal as an expert in the area of construction defects, especially in the methods and efficacy of fugitive water detection and causes.

Mr. Shelton is of the opinion that Tribal is in compliance with the CWO. The basis of his opinions were several. First, he said, the City of Gilbert issued building permits for this construction and, after inspection, the City passed Tribal’s construction. Secondly, he said, because the area where TAM complains of water is very large, any leak would have to be substantial. He said the locations of the alleged water seepage was far from the pool construction area. He said he eliminated all potential sources of leaking with testing that he performed. He did a dye test on the pool with a negative result for leakage. He said there is one single water line for both the pool and the spa. He opened both sides of the line and pressure tested the line with a negative result. He reviewed two separate leak test reports from leak detecting companies who conducted testing on Tribal’s work with negative results for any leaks. He said the discolored spots appear to move around over time. If the pool or spa leaks, he would not expect the spots to move around. The spot’s color, size duration and location changes. He would not expect a leak from a single source like the pool or like the spa to act that way.

Mr. Shelton testified that Inspector Gunstra did no investigation regarding whether or where there is a detectable leak. He testified that Mr. Gunstra only examined items that were complained about the TAM and then made a determination whether met ROC standards. He testified that there are other potential sources other than from Tribal’s construction that could cause water to appear on TAM’s property such as: hosing down the area will cause run-off of water onto or into area surrounding the spraying; ground water rising up to surface level will produce the same result as in this case; the heavy vegetation noted along neighbor’s walls when irrigated could leach onto TAM’s property produce the same result as in this case and stain patterns observed on both TAM’s and his neighbor’s walls show stains consistent with over watering which could leach into TAM’s property to produce the same result as in this case.

He said that the spa has a negative or zero edge. The spa is higher than the pool and water drains out from the negative spa down into coping. Tribal resealed the entire deck underneath the coping area. So, he stated that the water run-off from the spa is not a source of the water outside the spa. Water travels depending on the volume of water and soil conditions. The pavers in this case, he noted, are 10 feet from the pool/spa area. It would require, in his opinion, a constant flow of a substantial volume water to pass over or under these paver. Such a large flow volume would certainly show up in pressure testing that was done, but it did not. Finally, he stated on cross-examination, “I do not know where water is coming from. But I do know its not from the pool or spa.”

Testifying on behalf of Tribal was Mr. Robert Recio, Field Supervisor and employee of Tribal. He said he has been building pools for 24 years. He said he is the company’s remodel department and construction supervisor. He testified that his initials and signature appear on Exhibit 27 showing TAM and Tribal had initialed and signed off on each of the listed items in the CWO indicating that the items had been complied with. He testified that he conducted a bucket test for leaking on the pool, He said he first turned off all water sources. He place water in a bucket and placed a tape strip at the highest water level. He then placed a tape strip at the level of the water at the pool skimmer. He then leaves the area and later returns. He noticed upon inspection that the water level in the bucket was about 1/4” lower than it was originally, but the water level of the pool remained the same. The bucket’s loss is attributable to evaporation. The pool measurement indicated there is no leak from the pool’s water. Since all water sources are turned off, he can conclude there is no water leaking from the pool itself. He said there is now leak from the spa or pool. There is only one water line for both the spa and the pool. As part of his testing, he shut off the water line for 7 days and drained the pool for 7 days. He said there was no change in the water spots when drained or when the water was shut off. He said complaints of water seeping began three to four months after the pool was filled. He said that the spa has a negative or zero edge. The spa is higher than the pool and water drains out from the negative spa down into coping. He said that he resealed the entire deck underneath the coping area in order to insure that this site was not a source of leaks. He checked the entire of the underside of the area with a mirror. The Spa, he said, is not a source of leaks outside of the spa.

Kaitlin Reyes, Officer Manager for Tribal. She stated that she contacted and engaged two leak testing companies in order to comply with the CWO. She testified that the TAM pool was drained on December 18, 2017 and on December 28, 2017, the pool was re-filled. She said the first time that TAM complained of wet spots on the property was after TAM had filed its Complaint with the ROC. She said that Tribal has spent thousands of dollars to correct the CWO problems. She said that “Nothing else that we could have done to locate a leak that does not exist.”

Taking the witness stand at Rebuttal, TAM testified that the backyard gets wet every day. The wet areas get smaller in the daytime and larger overnight. He said that the areas always get wet, even when the irrigation is turned off. He said, the water comes from the pool area and that the pool turns on for cleaning at night... On Cross-examination, TAM testified that he has security video of the pool and spa area but that he did not produce them for this case.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 12, 2018. Such prior License record reflects that Respondent’s License No. 224021, 251147 was first issued on September 18, 2006 and is in current good standing with the ROC. The ROC record indicates Tribal has never been sanctioned for poor workmanship, or for that matter, for any other reason.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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 credible evidence presented at hearing established that at the time of the complaint there were items of Complainant’s project that needed to be completed.

As to the issue of poor workmanship, the evidence is clear - the direct cause of the water condition on TAM’s pavers and soil is not known. Only by inferences loosely based upon circumstantial evidence could this evidence point to a cause of TAM’s water conditions. Such a leap to conclusion is mere speculation and does not support the weight of the standard of proof. TAM failed, by a preponderance of the evidence, to convince the trier of fact that Tribal’s workmanship is a cause of any water leak or that that Tribal’s workmanship is a cause of any water seeping up from the ground onto TAM’s pavers or that Tribal’s workmanship is a cause of any water spots or soil discoloration of the TAM property.

The evidence, by a preponderance supports, that all items, but one, on the CWO were satisfactorily repaired. The only issue remaining for determination, TAM asserts, is that Tribal has not determined the source of leaks or fixed the leaks that TAM believes are caused by Tribal’s poor workmanship. TAM directs the factfinder to item 26 of the CWO to base its A.R.S. § 32-1154(A)(22) [failure to comply] claim. However, nowhere in the CWO is Tribal directed to determine the source of any leaks, to repair leaks.

The Complainant has failed to meet its burden of proof that the workmanship of Tribal fell below ROC standard. Therefore, Complainant failed to establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The Complainant has failed to meet its burden of proof that Tribal violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Tariq Abdalla Mohamed against Tribal Waters LLC, License No's. 224021, 251147.

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, May 12, 2018

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors