ALJDEC decisions subject to certification as final

2020A-04549-CHC-ROC · Registrar of Contractors · 2021-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jamie B Woodside,

COMPLAINANT

Patio Pools Of Tucson Inc.,

DBA: Patio Pools and Spas,

License No. ROC 032554,

RESPONDENT

No. 2020A-04549-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 6, July 7, and August 8, 2021, with the record held open until August 20, 2021 for the parties to submit written closing arguments.

APPEARANCES: Complainant Jamie B. Woodside was represented by Jason Clark, Esq. and Andrew Wenker, Esq. all appearing via Google Meet. Respondent Patio Pools of Tucson, Inc. was represented by ReNae A. Nachman, Esq. who appeared via Google Meet. Registrar of Contractors investigator Mike Springer also appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

______________________________________________________________________

FINDINGS OF FACT

Patio Pools of Tucson, Inc. (Respondent) is the holder of License No. 032554 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 4, 2018, Jamie B. Woodside (Complainant) signed a contract with Respondent for construction of a pool in his backyard. The contract amount was for $77,621.67.

On or about September 22, 2020, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on October 15, 2020.

Investigator Springer then issued a written directive on or about December 28, 2020 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. §32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 28th, 2020.

. . .

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

Compliance Item: 1 - Multiple Cracks inside pool and on decking.

Investigator’s Observation: I was unable to see these cracks. The Respondent states there are cracks and that they took in a small amount of dye during a test they performed.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Pool settling / sinking on a diagonal.

Investigator’s Observation: The pool shell has raised up on the West end. There is a 2 1⁄4 inch difference in the water line at the tiles between opposite ends of the pool. There is large gap between the West end of the pool and the concrete poured by the Complainant measuring 1 1⁄2 inch wide. I asked

if a soils test was performed, the Respondent stated that it was noted in the contract that they do not perform soil tests. I also found that the issued building permit has not had its final inspection. Respondent sent in a written response in which he states that drainage around the pool is inadequate. He states “We discovered a drainage problem on our site visit. Any rainwater and alike in the homeowners back yard adjacent to the pool location is trapped and has been slowly migrating under the pool. A section of the house roof drains directly into a low space between the house and the pool decking (see photos). This area of dirt is trapping water from splash out/rain and has no escape nor is diverted away from the pool and when enough water fills this area (approx.550 sqft). The water can migrate under the pool deck as well as under the pool. The homeowner has blocked in the water trap by pouring concrete completely around the west and north side of the pool deck and laid artificial turf on the east side at elevations 4’’ higher. Therefore, leaving standing water between the house and pool deck without drainage away from the pool. (see photos) At the pool deck shallow end side there is dirt eroded away under the deck from water entering a gap between the owners poured concrete and the pool deck, the erosion depth is approximately a 20’’ deep cavity” I am not able to verify this is the cause or if the soil is expansive or not. Text message screenshot from the Complainant shows a pool fill date of 9-25-18 which falls within the ROC's 2 year jurisdiction of completion after 30 days of filling and running the pool.

ROC Standard states: “The construction site should be examined by the contractor and the consumer should be made aware of any conditions, which could result in future problems.” Also: “At the time of substantial completion of the work, the pool/spa should be within +/- (plus or minus) 1/4" (1/2" of level - from high to low) when measured at the waterline tile.”

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - 2nd Skimmer is capped off because its above the water level.

Investigator’s Observation: Skimmer on SW side has been capped off due to the water level not being high enough to function. The Respondent capped the skimmer. Pic 7, 12

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Upper sprinkler on step In the floor cleaning system not working properly due to the angle of pool / water level.

Investigator’s Observation: Sprinkler/Cleaner head located on top of uppermost step is not working correctly due to the water level being too low. Pic 13

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On November 30, 2020 a Compliance Jobsite Inspection occurred.

On December 8, 2020, the Registrar issued a Citation against Respondent, charging possible a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).

On or about December 11, 2020, Respondent filed an Answer with the Registrar denying it had violated any rule adopted by the Registrar. In addition, Respondent filed an Amended Answer on or about February 10, 2021.

On or about January 25, 2021, a Notice of Hearing was issued setting a hearing on February 24, 2021, at the Office of Administrative Hearings, an independent state agency.

Investigator Springer testified as to his involvement and the above timeline.

Investigator Springer testified that he believed that the 30 day time period on the Directive was a good starting point to have the work completed.

In addition, Investigator Springer testified that the two year statute of limitations commenced 30 days after the pool is filled.

As to the settling of the pool, Investigator Springer testified that a contractor accepts the surface on which they are working, and believed that the contract between the parties was too general and not specific enough for this particular project, given the soil conditions known to the contractor in that area of Graham County.

Also, Investigator Springer testified that he suggested that the contractor obtain an engineer to determine what was going on with the soil.

As to whether the drainage in Complainant’s backyard was the cause, Investigator Springer testified that he did not consider the same because it would have been speculation on his part, as he did not have any evidence from the parties that Complainant’s decking or roof runoff was the cause. He testified further that he did not inspect for any drainage issues with other water sources.

Investigator Springer also testified that he did not believe that there was a denial of access and that Respondent did not request any extension of time to perform the corrective work.

Complainant testified on his own behalf. Curt Peterson and Jeff Starling also appeared as witnesses for Complainant, who offered 45 exhibits into evidence.

Complainant testified that he previously had an issue with his home’s foundation. He testified that his neighbor’s had a pool installed by Respondent, and heard about soil issues from them, but that that pool was only 31⁄2 feet deep so there were no problems with that pool moving.

Complainant testified that he worked with Vince Waters, and that Mr. Waters wanted to look at the grading in the yard, but recommended that Complainant use an upgraded concrete in the pool to help address the soil concerns. Complainant agreed to the upgrade concrete and believed that it was implied that the pool would not move by doing so.

Complainant testified that none of Respondent’s representatives advised him to get a soils test, and that he would have had he been told, and would have paid for a soils reports as he was spending over $70,000.00 for the pool.

Complainant testified that he signed the Graham County Waiver as he had no reason to believe he had expansive soil. He further testified that he signed a power of attorney to allow Respondent to obtain all necessary permits.

Complainant testified that once construction began on May 23, 2018, he was made aware that there were three “cave-ins” in the deep end of the pool and he reached out to Respondent, but nobody informed him of any issues with the soils or other drainage issues.

Complainant testified further that based upon the drawing of the pool, he was never informed of any drainage restrictions.

Complainant testified that in April 2019, he commenced the concrete work around the pool. He testified that Respondent informed him that he could pour the concrete right up to the pool deck ribbon and did so. Shortly thereafter, Complainant noticed that the pool was uneven and Mr. Waters recommended that the concrete work cease and that he would try to determine the cause.

Complainant next opened the pool in the spring of 2020, and noticed that the pool was 2 1⁄2 inches out of level.

Complainant performed a bucket test and found that the water in the pool lowered faster than the water in the bucket.

Complainant testified that he also shut off the water to the slide in case that was the cause of the leak.

Complainant testified that on April 13, 2020, he received a voicemail from Respondent’s new General Manager, Mike, to try to help the situation, but from April 15, 2020 until the time of filing, there was no communication from Respondent as to how to remedy the situation.

Complainant testified that he hired Western Technologies to perform a soil sample, and hired Leak Detectors to verify the 5 leaks in the pool.

Complainant further testified that Respondent offered to repair the pool after he filed the Complaint, but he refused as he believed all Respondent would be doing is a “patch job”.

Curt Peterson testified that he inspected the pool at Complainant’s home and prepared a report on the same. Mr. Peterson testified that he believed that the pool was 3.6 inches out of level and that the cause appeared to be because of soil movement.

Mr. Peterson testified further that he took two core samples one at 4.5 feet deep and one at 8 feet deep. In the first sample, he testified that he hit gravel and there was standing water, so he was unable to get a dry sample. In the second sample, Mr. Peterson testified that at about 25 inches down, there was a lot of water.

In addition, Mr. Peterson testified that there is not typically clean gravel under the pool as gravel is permeable so some water can get through.

Mr. Peterson testified that with clay, there was a higher plasticity and it was highly expansive, thus the pool was not designed properly to handle the expansion in the soil. Mr. Peterson testified further that the structural upgrades performed by Respondent were insufficient.

Also, Mr. Peterson testified that while initial soil testing may not have found the soil issue, Respondent’s excavators should have seen the clay as they were digging. However, he had no knowledge if this was brought to Complainant’s attention.

As to whether the drainage on the property could have caused the issue, Mr. Peterson testified that while he could not rule out rainwater as the cause, he did not believe that the runoff pattern supported that conclusion.

Jeff Starling testified that he performed a site investigation and prepared a report as well. Mr. Starling testified that he believed that the pool shell was designed for more neutral soils, and that the cracks that existed were a structural failure.

Mr. Starling testified that Respondent started with the incorrect design as they did not account for any expansive materials. Further, once the excavators commenced digging and were aware of the change in soil, plans should have been modified and/or soil testing would have needed to occur.

Finally, Mr. Starling testified that he believed that the pool was not salvageable because it could not be economically retro-fitted. Further, the pool would continue move and repairs would be purely cosmetic at this point.

Respondent presented the testimony of Gene Ragel, E.R. Ragel, Kathleen Yancey, Justin Heinecke, and Steve Trail. Respondent offered 25 exhibits into evidence.

Justin Heinecke testified that he was a soils engineer and he had spent 15 years working on cases such as this. Mr. Heinecke testified that he examined the area and took soil samples and prepared a report detailing his findings.

Mr. Heinecke testified that he was familiar with the soils in the Thatcher area, and that they were generally on the high side of expansive soil.

Also, Mr. Heinecke testified that he too noticed that the pool was out of level but the deck around the pool was in good condition. He believed that the cause of the soil movement was the storm water runoff and leaking from the pool slide.

Mr. Heinecke testified that he did not believe that an excavator would be able to tell the difference in the soils, but that somebody should have requested a soils test and only believed that it was Complainant’s responsibility because it was in the contract.

Next, Steve Trail testified. Mr. Trail testified that he did not perform a site inspection, but reviewed the other reports in this matter.

Mr. Trail too agreed that the general cause was expansive soils. Mr. Trail also testified that there was no poor work, but that there would not be possible to make the repairs within the 30 day deadline in the Written Directive.

Mr. Trail testified that Complainant had knowledge to get a soil sample and had three opportunities to do so.

Finally, Mr. Trail testified that if the soils could be stabilized, the pool could be salvaged.

Kathleen Yancey testified next for Respondent. Ms. Yancey has been with Respondent since April 1997, and worked with Complainant on the design and contract.

Ms. Yancey stated she performed a site visit and determined that there was enough space, that it was a level area, and had basic terrain.

Further, Ms. Yancey testified that while she conducted most of her contact with Complainant via e-mail, she was present at his house during the contract signing.

Ms. Yancey testified that the structural upgrades were necessary due to the soil being “soft and fluffy”, and typically used in that area of Arizona. Ms. Yancey testified however that she had no true knowledge of the actual soil conditions.

Ms. Yancey testified that she informed Complainant to make sure he read the Limited Guarantees and Warranties sections, then observed Complainant sign the contract and did not recall if he asked any questions on any of the contract provisions.

Ms. Yancey also testified that while sometimes she would discuss drainage issue with customers she did not discuss the same with Complainant in August 2018 after a significant rain event.

Gene R. Ragel testified on behalf of Respondent. Mr. Ragel testified that he is the President of Patio Pools and Spa’s and he started working there in 1972 when he was 16 years old.

As to the contract, Mr. Ragel testified that he created the same with the advice of his advisors and has used the same contract that Complainant signed for the past 8 years. Further, he testified that the same contract is used for every customer and is not modified for specific projects. He reiterated that it was Complainant’s responsibility to read the contract and obtain a soil sample if he was concerned.

Mr. Ragel also testified that Respondent has built pools in the Thatcher/Safford area and the upgrades that were used in Complainant’s pool were above standards. Mr. Ragel testified that Respondent built the neighboring pool and there were no problems.

Mr. Ragel testified further that when he went to Complainant’s house during the inspection he was flabbergasted to see that the pool had tilted two inches, and he thought that something had to have happened to cause this.

Mr. Ragel also testified that he examined the waterslide and tightened the bolts as far as they could go and suggested that Complainant contact the manufacturer for new gaskets as this may have caused the leaking.

Mr. Ragel testified that he believed that something must have pushed the pool and that the expansive soil got wet as the drainage from the soil area was running underneath the pool. He also testified that he was willing to fill up the area with water and watch it drain to test his hypothesis, but this was never agreed to by Investigator Springer.

Mr. Ragel testified that he requested that Complainant install gutters around his roof because he could not properly fix the pool until the drainage issue was properly corrected.

Mr. Ragel testified that the pool was not defective and that Complainant still has a functioning pool.

Finally, E.R. Ragel testified that he was Respondent’s Project Manager.

E.R Ragel testified that when he tested the cracks they were not taking in the dye and thus he believed that there was not much of a leak. Also he testified that he adjusted the pressure with the autofill and popup heads, and used a different assembly in the autofill so it would not leak.

E.R. Ragel testified too that until the drainage was fixed by Complainant, Respondent could not fix the pool as the movement would happen again.

Further, E.R. Ragel testified that Respondent and Complainant completed the pool startup on August 27, 2018.

Administrative notice is taken of Respondent’s prior License record on September 3, 2021. Such prior License record reflects that Respondent’s License No. 032554 was first issued on July 31, 1970, and reflects that there is 1 open complaint, namely the present complaint.

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 violations 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 Vazzano 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).

At the outset, the Tribunal finds that the Complaint was properly filed within the two-year statute of limitations requirement. The testimony presented demonstrated that the pool was filled and the parties ran through the “start-up” procedures on August 27, 2018. In the Registrar’s Workmanship Standards for Licensed Contractors, it states, “[s]ubstantial completion got swimming pools and spa interior cementitious finishes means 30 days from the day the pool/spa is filled with water and the equipment is in operation.” The Tribunal agrees with the testimony of Investigator Springer that the statute of limitations would not have expired until September 26, 2020. The Complaint was filed in September 22, 2020, thus rendering it timely filed.

The preponderance of the evidence established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b). As to Complaint Item 1, the cracks in the pool shell, Complainant established that there were cracks present in the shell and the pool was not watertight. In, E.R. Ragel’s testimony he admitted the same, but also stated that it was “not much of a crack”. Complainant’s testimony was that based upon his bucket test the pool was losing water at a greater volume than normal evaporation. Further, Complainant also presented credible evidence of a dye test performed by Leak Detectors. Therefore, Complainant established that Respondent was responsible for the cracking in the pool.

As to Complaint Items 2, 3, and 4, all of these center around the soils issue and the pool being out of level causing one skimmer to be shut-off and the bubbler system being rendered ineffective. The Tribunal again finds that preponderance of the evidence established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b). Respondent knew that the soils in Thatcher could cause problems, and upsold Complainant the reinforced rebar beams. While Respondent hoped that these beams would provide enough stability, unfortunately, they did not. It was Respondent’s responsibility to ensure that the soils were in a proper condition to perform construction. Further, there was evidence presented that even once the excavation began, the extreme change in soils would have be apparent and it should have been brought to the attention to Complainant.

Likewise, The Tribunal does not find Respondent’s argument persuasive that the drainage from the dirt area or the cement decking Complainant installed was the cause. Complainant testified that he did not commence the decking and other landscaping until approximately six months after the start-up of the pool. Complainant also testified that at that time he noticed the pool was un-level and contacted Vince Waters, and that neither he nor any of Respondent’s representatives informed Complainant to not install the decking or turf. Because of this, as well as the lack of persuasive evidence that Complainant’s work cause the pool movement, the Tribunal finds Complainant’s subsequent work in the backyard was not the cause for the pool movement.

Finally, Complainant argued that some discipline should be imposed on Respondent’s license while Respondent argued that no discipline should be ordered. The Tribunal takes into account Respondent’s lack of any previous disciplinary actions, yet, in this case, given the severity of the violation to which the only remedy appears to be one that involves redoing the entire project, the Tribunal determines that it is proper to impose discipline.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 032554 for a period of ten days.

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 20 days from the date of that certification.

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-137160-45720000Done this day, September 3, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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