ALJDEC

99F-0613-ROC · Registrar of Contractors · 1999-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 1999 APPEARANCES: Linda Black, Complainant, in her own behalf The Respondent did not appear, his brother was present and testified ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact The Complainants had contracted with Jurassic Pools (Jurassic) for the installation of a swimming pool including a surrounding deck. Jurassic had the Respondent install the deck. The initial installation of the deck was unsatisfactory. In approximately April, 1998, the Complainants and Respondent entered an agreement whereby the Respondent was to resurface the deck with Flocrete flagstone. There was no additional cost for this work which was under warranty as part of the pool contract with Jurassic. The independent contract between the Complainants and the Respondent was for $1,125.00 to do the existing patio with Flocrete, and $585.00 to add additional concrete decking. After installation, the pool deck did not have an east-west control joint and shortly thereafter cracks began to appear. In August of 1998, the Respondent did corrective work on the cracks plus putting in an east-west control joint for the pool deck but the cracks reappeared. The Complainants filed their complaint with the Registrar of Contractors (Registrar) on August 19, 1999. On October 22, 1998, Inspector Lewis King (King) of the Registrar’s Office performed an inspection of the pool deck and the Flocrete on the patio. He found numerous defects for both areas including but not limited to chipping, cracking, staining, poor grout lines, dripping of colors, rough areas, uneven heights of deck and patio, pin holes, splattered coating, lack of sealant, and failure of prior repairs. The full list of items to be repaired is on the Corrective Work Order which was issued on October 27, 1998. This list was reviewed as part of the record in this case and the evidence fully supports all the items set forth in the CWO. King performed a prehearing inspection on March 8, 1999 and noted some additional areas which require attention. The cantilevered portion of the deck near the pool skimmer is severely cracked and requires correction. A trip hazard at the end of the deck where it is nearly 13 inches above ground level was not part of the original CWO. Nonetheless, the evidence clearly shows that it does exist. The Respondent’s witness (called to testify by the Administrative Law Judge) testified that Jurassic was to provide fill to raise the area abutting the deck so that the height differential between the deck and ground would be reduced to an acceptable level. According to the Respondent, Jurassic filed for bankruptcy and never provided the fill. No corrective work was done at the Complainants’ home. According to the Respondent’s brother, the Respondent was experiencing financial difficulties until recently. Currently the Respondent is building homes in the Yuma area and his brother is in charge of pool related deck work. Inspector King testified and the Respondent’s brother agreed that at a minimum, the Flocrete needs to be replaced on the deck and patio. . . . . . . Conclusions Of Law The allegations of the Citation and Complaint concern A.R.S. §32- 1154(A)(3) violation of any rule, particularly A.A.C. R4-9-108 relating to workmanship, (A)(7), wrongful or fraudulent acts with substantial injury, and (A)(23), failure to take appropriate corrective action. The evidence is essentially uncontested regarding the matters which were found to need correction by King and those items do not meet minimum workmanship standards, thereby establishing the violation of A.A.C. R4-9- 108, A.R.S §32-1154(A)(3). The failure to perform corrective work is not excused and the violation of (A)(23) is also established. No fraud was proven and in view of the conclusions above, the issue regarding wrongful conduct and substantial injury becomes redundant. It is concluded under the facts of the case that as between the Complainants and the Respondent, irrespective of what may have been the agreement between the Respondent and Jurassic, the Respondent is responsible for providing adequate fill to eliminate the trip hazard in the area where the deck rises nearly 13 inches above ground level. The Respondent is also responsible for correcting those new problems which have arisen since the CWO with respect to the deck in its entirety and Flocrete on the patio. Recommended Order In view of the foregoing it is recommended commencing on the effective date of the Order entered in this matter that the Class B license of the Respondent shall be revoked unless the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the pool deck and patio as required by the Corrective Work Order of October 27, 1998 and consistent with the additional findings and conclusions of this Recommended Order ; It is further recommended that if the Respondent accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, March 15, 1999.

______________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of March, 1999, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826