ALJDEC

99F-2064-ROC · Registrar of Contractors · 2000-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2000. APPEARANCES: Complainant appeared personally. Respondent appeared through its president and qualifying party, Dennis Diehl. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of License No. 130953, a Class B-05R license, issued by the Registrar of Contractors. 2. In September of 1998, Complainant contacted Jeff Johnson of Fiberglass Pool and Spa Surfacing to inspect her fiberglass coated pool in an attempt to locate a steady leak. Complainant’s pool was originally installed as a vinyl liner above ground wooden framed pool. Subsequently the vinyl liner was removed and replaced with fiberglass. Complainant’s swimming pool later had fill and decking installed around it. 3. After performing an inspection of the pool, Johnson believed that the wooden subsurface was not sound due to the warped appearance of the pool surface and because the fiberglass installed in place of the vinyl liner did not provide a sufficient waterproof barrier to protect the wood frame substrate. Johnson recommended to Complainant that the prudent course of action would be to tear out the entire pool, replace it with gunite and then apply her choice of pool surface. 4. On or about November 30, 1998, Complainant and Respondent entered into a written contract for the performance of work on Complainant’s existing pool. 5. Respondent inspected Complainant’s pool and discovered that the automatic water levelor was continually running at the rate of ½ gallon per minute or 720 gallons per day. Respondent performed some remedial repairs and believed that the problem had been corrected. 6. The scope of work to be performed by Respondent under the contract included the following:

a) apply white fiberamics coating; b) non-skid top of pool steps; c) install 6” tile supplied by Complainant on the pool perimeter; d) special prep; e) drainage fee; f) reinforce entire pool perimeter; and g) tab chlorine feeder.

4. The total contract price for Respondent’s work was $3,995.00. Complainant paid a down payment in the amount of $1,995.00. The remaining balance of $2,000.00 was paid by Complainant on December 15, 1998. 5. Respondent applied a coating of ceramikote product on the interior surface of Complainant’s pool. 6. After Respondent completed its work Complainant continued to experience a steady leak from the pool. 7. On or about January 15, 1999, Complainant filed a complaint against Respondent with the Registrar of Contractors alleging that Respondent had violated provisions of the state’s contracting laws during the performance of work on her pool. 8. As a result of the filed complaint, the Registrar’s assigned inspector performed a jobsite inspection to view Complainant’s pool. It was a strained inspection due to tension between the parties. After performing his inspection, the inspector issued a Corrective Work Order directing Respondent to timely reinforce the entire perimeter of the pool and to install waterline tile provided by the Complainant. 9. After receiving the Registrar’s written directive, Respondent attempted to contact Complainant to arrange access to her property in order to perform the required repairs. It appears that Complainant’s failure to contact Respondent was due to her husband’s terminal illness and subsequent death, rather than any attempt to avoid Respondent. 10. Respondent requested that the inspector perform a reinspection of Complainant’s pool. Complainant agreed to the request. The inspector did perform a reinspection, which reaffirmed his prior findings. During the reinspection Respondent’s president and qualifying party told the inspector that there was “junk” behind the pool tile. 11. It is determined that Complainant’s pool is leaking at the transition of the ceramikote product installed by Respondent and the waterline tiles. 12. It is found that Complainant’s pool is also leaking due to the lack of a waterproof barrier. Originally the pool had a vinyl liner applied over the plywood frame which provided a barrier that retained water and protected the wood frame from water saturation. However, when the vinyl liner was removed and replaced with a fiberglass application directly on the wood frame, the pool then lacked a waterproof barrier since fiberglass is a porous product. Over time, water leaked through the original fiberglass application causing damage to the pool’s wooden frame and loss of water from the pool. 13. Respondent had knowledge that Complainant’s pool leaked at the time it submitted its bid and entered into the parties’ written agreement. Respondent was aware that Complainant’s pool had a wooden substructure, which it contractually agreed to reinforce around the entire perimeter. There is no evidence that Respondent’s application of the ceramikote product provides a waterproof barrier for Complainant. Respondent should have advised Complainant that the application of the ceramikote product on a wooden substrate without a waterproof barrier would result in water leaking from the pool. 14. While Respondent’s application of its ceramic product has not otherwise failed, that application is of little use to Complainant because her underlying problem, a swimming pool without a waterproof barrier, remains. 15. Complainant filed a civil lawsuit seeking monetary damages for her injuries sustained by Respondent’s failure to perform its scope of work to minimum workmanship standards. The Justice Court awarded Complainant a judgment against Respondent in the amount of $2,200.00 for damages and costs. That judgment was not appealed by the parties. The judgment has not been satisfied. 16. Respondent is found to have contracted outside the scope of its Class B- 05R fiberglassing of swimming pools license when it contracted to perform tile work on Complainant’s pool. 17. Respondent’s failure to perform its work to minimum workmanship standards and its contracting for work outside the scope of its license are deemed to be wrongful acts which have substantially injured Complainant. 18. A review of the official records of the Registrar of Contractors reveals that Respondent’s Class B-05R license was suspended by operation of law on January 7, 2000, for lack of bond and is delinquent for Respondent’s failure to renew the license. The Registrar’s records also reflect numerous pending complaints against Respondent.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. §32-1154(A)(7) and (3); namely Rule R4- 9-108. 2. The evidence of record is insufficient to establish that Respondent violated the provisions of A.R.S. §32-1154(A)(23). 3. The Registrar of Contractors may impose specific conditions on the license of a contractor who is found to have violated the provisions of A.R.S. §32-1154(A). A.R.S. §32-1154(B) A determination of the amount of damages suffered by Complainant resulting from Respondent’s violation of A.R.S. §32-1154 (A) has already been established by the Justice Court in the parties’ final civil litigation, which cannot be collaterally attacked in this administrative proceeding. However, the evidence of record supports the Registrar’s imposition of a condition requiring Respondent to satisfy the civil court judgment in order to avoid the revocation of its Class B-05R license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B- 05R license be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays Complainant the sum of $2,200.00 in satisfaction of the above-described Justice Court judgment on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place, but instead that Respondent’s Class B-05R license shall be placed on suspension for a period of seven days followed immediately by a period of disciplinary probation for 90 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-described disciplinary penalties, that any continuation or restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 24 month period and only if no claims are then pending. Done this day, February 22, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

----------------------- [1] Mrs. Berry’s husband, Bob Berry, was originally a co-complainant, but he has passed away.

-----------------------

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