ALJDEC

97F-M1837-ROC · Registrar of Contractors · 1997-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 1997. APPEARANCES: Gary L. Slump, Complainant, appeared on behalf of himself and his wife, Dona Lee Slump. Robert Fisher appeared representing Hawaiian Pools, Inc., Respondent and holder of Class B-05 license no. 064252.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Gary and Dona Lee Slump, Complainants, reside at 1431 W. Saragosa Place, Chandler, Arizona. Complainants contracted with Richmond American Homes to have their residence built in 1996. Complainants took possession of their new home on or about June 28,1996, and occupied the home on or about July 2, 1996. As a feature of their new home, Complainants opted to have a pool constructed. 2. Hawaiian Pools, Inc., Respondent, is holder of Class B license no. 118799. Respondent constructs pools. 3. On May 8, 1996, Complainants entered a construction contract with Respondent for the construction of a pool in the back yard of their new home. (Respondent’s Exhibit 10). The instant matter arises out of Complainants’ complaint that Respondent is responsible for yard drainage problems Complainants now have, as well as for several other items, including damages to walks and a curb and gutter. 4. Several provisions of the contract are relevant to the instant matter. Specifically, paragraph 6 states, in part, that the owner assumes “all liability for damage to driveway, walks, curbs.” Paragraph 8 provides, in part, that “proper yard drainage away from the pool and pool decking is the sole responsibility of the owner.” Paragraph 10 adds that the contractor will do no grading unless specified in the contract. No grading is specified in this contract. The contract also limits the pool warranty covering decks and walks, and specifically advises the buyer not to sign the contract before reading the document. 5. During the consummation of the agreement, Mr. Slump signed several documents in addition to the contract. One document Mr. Slump signed is the Customer Information Checklist. (Respondent’s Exhibit 12). This document indicates that Mr. Slump read all its provisions and accepted them. Item 8 in the document provides, in part, that the buyer assumes responsibility for proper yard drainage away from the pool and pool decking. Item 9 advises the buyer that gutters are recommended to direct roof drainage away from the pool area. Finally, item 11 advises the buyer that no grading will be done by the contractor without prior written arrangements. The second document Mr. Slump signed in addition to the contract is a Drainage Disclaimer. (Respondent’s Exhibit 13). This document confirms that the buyer understands his or her responsibility for yard drainage. 6. Subsequent to the completion of the pool, Complainants observed water pooling at the foundation of the southeast corner of the home. The preponderance of the evidence demonstrates that water splashed from the swimming pool and used to wash the surface of the pool deck drains to this area and collects. The preponderance of the evidence also demonstrates that this condition is unsound and should be remedied. 7. Complainants raised the drainage issue with Respondent. Respondent advised Complainants that they assumed responsibility for all drainage problems when they contracted to have the pool constructed. Nevertheless, Respondent offered some remedial proposals to resolve the matter. Dissatisfied with Respondent’s proposals, Complainants filed a Complaint with the Registrar on June 6, 1997. The Complaint raises the issue of drainage, as well as the following: 1) that Respondent improperly charged Complainants an additional $910.00 for excavation; 2) that Respondent caused damage to the stucco of the northeast side of the home and failed to repair the damage; 3) that Respondent failed to remove excess dirt after the pool construction; 4) that Respondent cracked the sidewalk, curb, and gutter in front of Complainants’ home; and 5) that Respondent failed to refund to Complainants the sum of $1388.00 for a barrier fence not constructed. 8. On July 14, 1997, after inspecting the construction, Ron Lamp, Inspector for the Registrar, issued a Corrective Work Order (“CWO”) ordering Respondent to take the following action: 1. Properly repair deck for appropriate drainage. 2. Resolve the $910 charge. In this Inspector’s opinion, there should be a change order to reflect the change. 3. No action on stucco damage, as Inspector unable to determine who or what caused the broken corner. 4. Remove excess [dirt] with repair of deck, as per jobsite agreement. 5. No action on curb crack. 6. Refund the barrier fence cost of $1388 per jobsite agreement.

9. Upon receipt of the CWO, Respondent contacted the Registrar and requested that the basis for the CWO be disclosed. The evidence reveals that the work order respecting the repair of the deck was based upon a drawing Complainants submitted to the Registrar. The drawing was drafted by James M. Wilson, a professional engineer Mr. Slump asked to propose a solution to the drainage problem. The drawing was not the one attached to the construction contract. As a result, Inspector Lamp determined that a second inspection was necessary to determine if Respondent constructed the deck and pool pursuant to the plans and applicable codes. Inspector Lamp completed this inspection on December 11, 1997. During the hearing in this matter, Inspector Lamp concluded that, while the drainage problem should be remedied, Respondent constructed the pool and deck pursuant to the plans, applicable codes, and workmanship standards. 10. Between the time of the issuance of the CWO and Inspector Lamp’s second inspection, Respondent made reasonable efforts to comply with those items of the CWO requiring its action. Specifically, the evidence demonstrates that Respondent resolved the issues with respect to item 2, 4, and 6 of the CWO. In particular, the contract allows Respondent to charge Complainants the additional excavation charge and Respondent properly owed Complainants $1388.00 for the barrier fence. Respondent’s set-off of these two items was proper; indeed, Complainants’ acceptance of a check for the difference in satisfaction of both claims supports this finding. (Respondent’s Exhibit 19). 11. As for those items in the CWO that require no action by Respondent, items 3 and 5, the evidence fails to establish a violation by Respondent for either issue, consistent with the CWO. 12. With respect to the drainage issue, item 1 in the CWO, the evidence establishes that the problem should be remedied. The evidence fails to establish, however, that Respondent is either responsible for the problem factually or legally. Factually, the preponderance of the evidence fails to establish that Respondent’s action caused the drainage problems in Complainants’ back yard. During the hearing, Respondent offered the testimony of Ronald A. Starling, a professional engineer holding certifications in both structural engineering and civil engineering. Mr. Starling testified in detail about his experience in inspecting drainage on commercial and residential properties. He opined that the crux of the problem in this matter is that Complainants chose a very large home for the size of their lot; that is, regardless of Respondents construction of the pool, Complainants would likely have had a drainage problem in any event. Mr. Starling concluded that the drainage problem would be best addressed by draining the water from the back yard to the front yard.[1] He recommended that Complainants install gutters on the sides of their home and install a perforated pipe at the southeast corner of the home down the side of the home to the front yard. Inspector Lamp concurred with Mr. Starling’s opinions and recommendations. Legally, the contract signed by Mr. Slump explicitly advises Complainants that they are responsible for drainage issues. The Customer Information Checklist and Drainage Disclaimer restate Complainants’ responsibility. Respondent could not have done more to advise and inform Complainants of their responsibilities under the contract. Furthermore, it is noteworthy that Respondent has repeatedly offered to assist Complainants with their drainage problem, despite having no legal obligation to do so. Such conduct should endure as a standard by which other contractors deal with their customers; its good business.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner . . . . 3. Violation of any rule adopted by the Registrar.[2] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, ___ (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at 1182 (6th ed., 1990). 2. Complainants fail their burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainants fails their burden of demonstrating a violation; that is, Complainants fail to demonstrate sufficient evidence that Respondent violated either A.R.S. §32-1154A(7) or A(3), namely A.A.C. R4-9-108. 4. With respect to Respondent’s alleged failure to take corrective action without good cause, Complainants fail their burden of demonstrating a violation.

RECOMMENDED DECISION In view of the foregoing, it is recommended that no action be taken in this matter against Respondent ’s Class B-05 license, no. 064252. Done this day, December 22, 1997.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1997, to:

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

By ___________________________ ----------------------- [1] It is on this basis that Mr. Starling challenged the proposal of Mr. Wilson, which would have left water in the back yard. [2] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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