ALJDEC

97F-2575-ROC · Registrar of Contractors · 1998-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 1998 APPEARANCES: John and Debi Murtagh, Complainants, in their own behalf Hop Cassidy, President and Qualifying Party, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT In September of 1995, the Respondent built a pebble-tec pool with a waterfall, at the Complainants’ home. The pool has a raised bond beam edge which extends approximately 18 inches above the normal water level. The waterfall was built on a concrete base with surface select boulders and mortar. The waterfall had an overhang of possibly 18 inches which extended into the pool. The pool has an underwater seat which allowed the Complainants to sit under and behind the water flowing from the water fall. The waterfall had some cracks and leaks in the mortar and possibly some of the rocks. This allowed water to seep to the concrete base and then flow into the pool over the raised bond beam which abutted the base. This water flow would continue even after the waterfall was turned off and the area of the pool began to show calcium build-up on the pebble-tec under the waterfall. The Respondent attempted to seal the rocks with additional mortar and had the pebble-tec cleaned by a glass bead process. This did not solve the problem and the calcium deposits returned. Water in the Phoenix area is known to contain a high concentration of minerals. An improper pH balance in a swimming pool can cause calcium build up problems in the pool. On April 24, 1997, the Complainants filed their complaint with the Registrar of Contractors (Registrar). Inspector Dick North (North) of the Registrar’s office inspected the pool and determined that there was some leakage through the mortar and rock of the waterfall which allowed water to percolate through mortar and concrete thereby collecting additional minerals which were deposited into the pool. North concluded the calcium build-up was excessive and issued a Corrective Work Order (Order) on June 2, 1997. The order required correction by appropriate means. North anticipated that the Respondent would possibly apply a sealant to the waterfall in order to eliminate or at least drastically minimize the leaking from the base and down the side of the pool. In August or September, 1997, the Respondent took down the entire waterfall and subsequently replaced it. The new waterfall does not leak. However the Complainants have numerous new and different complaints regarding the new waterfall. The Respondent asserts that he was not apprised of the new complaints regarding the new waterfall. The new waterfall has not been inspected by North to make a determination of the nature of the problem and whether there is a need for corrective work. CONCLUSION OF LAW The above facts show that the issues of the original complaint have changed significantly. Although the case still involves a waterfall and calcium deposits, it is not the same waterfall or the same problem (leakage) that was the basis of the original complaint or the subject of the original inspection and Order by North. Furthermore, the Respondent was unaware of the changed nature of the complaint. Under the above facts, it was determined that since the case now addresses new issues and a new waterfall, the case is essentially a new case and the matters raised on the prior waterfall are essentially moot. It was agreed by the parties that the new issues would be best pursued as a new case with the parties first attempting to resolve the matter. If unsuccessful in this attempt, a new complaint may be filed with the Registrar during the warranty period which runs from the installation of the new waterfall. The new waterfall can then be properly inspected resulting in whatever consequences may be appropriate depending on the results of the inspection. ORDER In view of the foregoing, it is ordered that the hearing of this matter is vacated. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Citation and Complaint in case no. 97-2575, docket no. 97F-2575-ROC be closed. Done this day, February 5, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

Original transmitted by mail this ____ day of February, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826