ALJDEC - Licensing
2023A-01122-CHC-ROC · Registrar of Contractors · 2023-10-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
John Adams ,
COMPLAINANT
v.
R & D Appel LLC
DBA: The Edge Pools
License No. ROC 213782,
RESPONDENT
No. 2023A-01122-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 18, 2023
APPEARANCES: John Adams appeared on his own behalf. Investigator Mark Nipp appeared as a witness on behalf of the Registrar of Contractors. Randy Appel represented R & D Appel LLC.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
R & D Appel LLC, doing business as The Edge Pools (Respondent), is the holder of License No. 213782 issued by the Arizona Registrar of Contractors (Registrar).
On or about January 28, 2023, John Adams (Complainant) entered into a contract with Respondent for, among other things, renovations on an existing pool.
On or about February 6, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Mark Nipp. After a jobsite inspection, Investigator Nipp issued a Written Directive 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 March 21, 2023.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item #1: Contract specified modification of existing functional in floor cleaning system for new Baja shelf. Contractor error caused the pool's entire in floor system to be eliminated.
Investigator’s Observation: Verified
The Complainant explained that he hired Respondent to remodel his swimming pool and to add a Baja step. Prior to starting the remodeling project, the pool had a functioning in-floor cleaning system.
The Respondent stated that shotcrete went in early and they covered the in-floor cleaners by mistake. When this happened, he asked the Complainant if he wanted to eliminate the in-floor cleaners and the Complainant agreed.
The Complainant stated that he agreed only because he didn’t believe there was any way to recover the in-floor cleaners and that he had no choice.
I saw that there were no in-floor cleaners or any associated equipment. I reviewed the contract and change order #1, noting the following:
The original contract, dated 11/19/2021, described the following work to be done, “add Baja deck and replace in-floor jets where Baja is going.” (Copy of Written Contract – Pool Contract.pdf)
Change Order #1, dated 05/03/2022, described the following work to be done, “Add new Hayward VS 950 pump after re-costing plumbing from in- floor system – 800...Remove and add new cartridge filter, new pads, re- plumb, and remove un-needed pool equipment – 1980.” (John Adams Change Order 1.pdf)
The original contract calls for replacing in-floor jets in the Baja deck. There is no mention of removing the system. The Respondent admits that shotcrete was early and mistakenly covered the in-floor cleaners. The change order does not specify that the in-floor system would be removed. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 1-2
. . . . Compliance Item #2: Without authorization or providing explanation, contractor eliminated the original, properly operating secondary main drain and vacuum breaker from interior of pool.
Investigator’s Observation: Verified
The Complainant explained that the secondary drain and vacuum breaker worked fine and was not supposed to be altered.
The Respondent stated he removed the secondary drain and vacuum breaker because they were unnecessary.
I saw there was no secondary drain or vacuum breaker in the pool. I reviewed the contractor and change order #1 and noted the following:
The original contract, dated 11/19/2021, described the following work to be done, “chip out 80’ perimeter pool w/ 3’-5’-4’ depths, 10,500 gallons and redo pebble tech...add Baja deck and replace in-floor jets where Baja is going...Remove large rock waterfall feature approx. 5’x3’ with four rocks...replace rock waterfall feature w/ new modern rock wall feature & sheer (6ft x 18in x 2ft)” (Copy of Written Contract – Pool Contract.pdf)
Change Order #1, dated 05/03/2022, described the following work to be done, “Remove and add new cartridge filter, new pads, re-plumb, and remove un-needed pool equipment – 1980.” (John Adams Change Order 1.pdf)
The original contract was specific to resurfacing the swimming pool, adding a Baja step, and replacing the water feature. There was no mention of removing the functional systems within the pool. The change order is not clear as to what the un- needed pool equipment was. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 2-4
. . . . Compliance Item #3: Contractor did not upgrade the out of date pool drain cover as required after the new pool interior was applied.
Investigator’s Observation: Verified
The Complainant explained that they were supposed to replace the main drain cover and did not.
The Respondent stated, “He is 100% correct.” The Respondent also explained that they were unable to find a replacement lid because that particular model of drain was no longer in production.
I saw that the main drain cover appeared to be older and did not appear to have been replaced. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 3
. . . . Compliance Item #4: Without authorization or providing explanation, the contractor eliminated the properly operating equalizer line to existing debris canister.
Investigator’s Observation: Verified
I saw there was no equalizer line plumbed to the debris canister. The equalizer line allows the water level in the debris canister to remain at the proper level and proportionate to the pool water level. Without it, the debris canister is not functional. I reviewed the contract/change order #1 and did not locate any mention of removing the equalizer line for the debris canister. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 5
. . . . Compliance Item #5: Contractor applied shotcrete over the properly operating, originally installed pool light and did not remove or clean.
Investigator’s Observation: Verified
I saw there was a shotcrete-like substance covering parts of the pool light and its housing. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 6
. . . .
Compliance Item #6: No site plans were drawn, no structural calculations were performed and no engineering reports were acquired for pool shell, structure and bond beam modifications.
Investigator’s Observation: Verified
I asked the Respondent if he had any engineering done or if he had obtained a building permit for this project. The Respondent stated that he did not obtain a permit and that he did not believe one was necessary. I contacted the Town of Gilbert Building Department and spoke to Becky, who told me that any remodel of a swimming pool that changes the engineering (add Baja step, modify bond beam, etc.) would require a building permit. I searched the Town of Gilbert online portal and did not locate a building permit for the swimming pool remodel. The International Residential Code (IRC) 105.1 requires that a building permit be obtained prior to beginning a construction project.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes/permit, and within the scope of their license.
. . . . Compliance Item #10: Lack of proper control joints causing movement and cracking of decking.
Investigator’s Observation: Verified
The Complainant explained that he was referring to the expansion joints that should be in place where the concrete meets the buildings.
I saw there was no expansion joint membrane around the out-building or the house itself. It is a commonly accepted professional standard to install expansion joint membrane between concrete and a building. As the concrete expands/contracts, the membrane helps prevent damage to the structure.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 19-23
. . . . Compliance Item #11: Poorly installed and poorly repaired coping on cantilever edge of decking.
Investigator’s Observation: Verified
I saw two locations on the edge of the pool coping that were cracked and falling away. Cracks and loose coping is not acceptable.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 24-25
. . . . Compliance Item #12: Improperly installed deck drain.
Investigator’s Observation: Verified
The Complainant explained that the control joints were bad and that was causing the concrete decking to move. The movement of the decking is causing the deco- drain to move. The Complainant stated the deco-drain was flush with the edge of the decking and now it is not and there are gaps (P15-18)
I saw there were gaps in the deco-drain and that there was a section of deco-drain that extended past the edge of the concrete decking. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 15-18
. . . . Compliance Item #13: Irregular appearance and poorly applied deck coating.
Investigator’s Observation: Verified
I saw on location where the concrete coating was flaking off and not well bonded to the concrete. A contractor shall perform all work in a professional and workmanlike manner.
The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 26-
. . . . Compliance Item #16: Unpainted surfaces, over sprayed surfaces, unfinished repairs to damage occurring during construction.
Investigator’s Observation: Verified
I saw the following areas that require correction:
Wall at deco-drain – There was staining on the wall from the Respondent saw-cutting the deck to install the deco-drain. The linear stain can be seen on the wall directly in line with the saw cut (P30-31).
Stucco wall (house) and Equipment wall – stucco patches were completed on the house and not painted. The equipment wall is not painted (P32-33).
Stucco wall (house) behind and right of pool filter – Respondent agrees they damaged the wall during the project and repaired the stucco. However, the wall has not been repainted.
The block wall behind the fountain is damaged (hole). The Respondent agrees this was damaged during construction.
A contractor shall perform all work in a professional and workmanlike manner.
The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.
Reference Picture(s) 30-35
Following the issuance of the Written Directive, Investigator Nipp amended the Written Directive on April 7, 2023, and extended the compliance deadline to April 25, 2023. In the Amended Written Directive, Investigator Nipp unverified Compliance Items 1, 2, and 4 and added the following note to each:
On 03/23/2023, I received an email from the Respondent with an explanation of the change order (signed by the Complainant). The Respondent explained that he gave the Complainant two options after two in-floor cleaners were covered with shotcrete. The Respondent states he offered to extend the two heads that had been covered or to remove the in-floor system and all associated equipment. The Respondent stated that the Complainant agreed to remove the in-floor cleaners. As part of that plan, the Respondent credited the original cost of in-floor cleaners and installed a variable speed pump at a discounted price. This information was not made clear at the Jobsite Inspection. Given that the Complainant was given an option to restore the two in-floor cleaners, it is not appropriate for the Registrar to direct the Respondent to now restore all the in-floor cleaners and associated equipment (In-floor cleaners and plumbing, Secondary drain and Vacuum Breakers, Equalizer line to Debris Canister).
Investigator Nips then struck and replaced the language requiring Respondent to correct said compliance items with “No further action is required.” Investigator Nipps then struck the Governing Rule language sections and replaced them with “N/A.”
Following the issuance of the Amended Written Directive, Investigator Nipp amended the Amended Written Directive on June 8, 2023, and extended the compliance deadline to June 26, 2023. The second Amended Written Directive reinstated Compliance Items 2 and 4 in their entirety and added the following language to Compliance Item #2:
I contacted the pool drain manufacturer, Paramount, and spoke to Jason. I described the original plumbing of the swimming pool and how the swimming pool was plumbed currently, specific to the main drain and safety features designed to prevent drain entrapment. Jason told me that he did not believe the pool drain was installed correctly based on the information I had provided. Additionally, Jason stated that the original drain cover (MDX) did not meet current safety guidelines and that the Respondent should have replaced the cover with an MDX-2 cover that is compliant with standards (VGB – Virginia Graeme Baker Pool and Spa Safety Act) to prevent drain entrapment. The Respondent altered the swimming pool by the additional of the Baja step. In the process, the Respondent altered the plumbing of the swimming pool significantly. Alteration of a structure requires a building permit pursuant to International Residential Code (IRC) Section 105.1. When alterations are made, the alteration must conform to present day building codes pursuant to International Residential Code (IRC) Section 102.7.1. The MDX drain does not comply with current building code requirements for pool drains to prevent drain entrapment because the secondary vacuum breakers and secondary suctions were eliminated by the Respondent.
After the deadline in the second Amended Directive expired, Investigator Nipps was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and (b), Ariz. Rev. Stat. § 32-1154(A)(3), Ariz. Admin. Code R4-9-108(A) and (B); and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Nipps testified consistently with his jobsite inspection notes, Written Directive, Amended Written Directive, and second Amended Written Directive.
Complainant testified the pool and equipment, prior to contracting with Respondent, were in good working order other than the need for an update to the drain cover to meet modern city code. When Respondent resurfaced Complainant’s pool, it demolished both a secondary drain when its team sealed off said secondary drain and Complainant’s existing in-floor cleaning system. Respondent assured Complainant his pool would be compliant with city codes despite the fact that the secondary drain was sealed. Respondent reassured Complainant his pool would be compliant because the skimmer operated as a secondary suction device and the vacuum would serve as a third suction device. Respondent claimed the main drain, secondary skimmer, and vacuum would operate as the anti-entrapment system. After the April 7, 2023, Amended Written Directive, Complainant contacted the manufacturers of both his skimmer and pool vacuum to determine whether Respondent’s anti-entrapment scheme was VGB compliant. Both manufactures confirmed Respondent’s anti-entrapment scheme would not be VGB compliant. Complainant testified the Baja shelf and water feature construction were not compliant with city building codes. Complainant spoke with the engineering firm Respondent hired to create the plans to submit to the City of Gilbert. Complainant was informed the amount of rebar installed in the Baja shelf was unknown as a pre-inspection did not occur prior to shotcrete. The engineering firm also informed Complainant the design of the water feature necessitated plans should have been created as the change was considered structural. No engineering plans were created for the water feature. Finally, Complainant testified Respondent’s failure to install expansion joints cause his decking to crack in several places.
Mr. Appel testified regarding the permits and Baja shelf. A scan of the pool could be done to determine whether the Baja shelf could pass inspection, but admitted the pool would need to be drained to an extent to complete said scan. Regarding the drain issue, Mr. Appel admitted his team inadvertently sealed off the secondary drain.
Administrative notice is taken of Respondent’s License No. 213782 record on October 4, 2023. Respondent’s License No. 213782 was first issued on December 16, 2005, and was suspended on May 31, 2023, for lack of a qualifying party. Respondent’s License record also reflects that there were no other open complaints, three resolved/settled complaints, and one prior compliant resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
Complainant also established that Respondent did not complete the project in compliance with plans or specifications and applicable building codes in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and (b) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
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. 213782 for a period of seven days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, October 6, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
R & D Appel LLC
DBA: The Edge Pools
[email redacted]
John Adams
[email redacted]
By: OAH Staff