ALJDEC

99F-2313-ROC · Registrar of Contractors · 1999-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 1, 1999 APPEARANCES: Jeffrey Hernandez, Complainant, in his own behalf David Postal, Attorney at Law, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact In October, 1998, the Complainant and Respondent entered a contract for the installation of a swimming pool and spa at the Complainant’s home in Scottsdale, Arizona. The original contract price for the pool and spa was in the amount of $23,875.00. The contact provided that:

“Pool and Spa to be incorporation of natural rock and a textured finish to give an overall look of a natural desert oasis. Pool to have a six foot tall water feature as well as textured stone around bond beam. Spa to have textured stone on entire interior as well as a ‘heated’ sand bottom with three foot high waterfall.”

The Respondent had shown the Complainant photographs of various pools as examples of prior work. The construction of the pool was done with vinyl as the outer layer and rebar reinforced cement as the interior (bottom and sides of the pool). The upper perimeter of the pool consists of concrete formed like natural rock. Adjacent to the perimeter is concrete decking. Prior to the pool being filled, the Complainant determined the bottom of the pool was too rough and the Respondent treated it with acid to make it smoother. The Complainant was still not completely satisfied but wanted the pool filled. The pool was filled although the parties had some discussions about the possibility of adding pebble-tec at a later time. Work on the pool and spa was completed in January, 1999. The Respondent attempted to address various pool problems which were raised by the Complainant, but failed to do so to the Complainant’s satisfaction. On February 10, 1999, the Complainant filed his complaint with the Registrar of Contractors (Registrar), alleging plumbing, texturing, plastering and color problems. In early April, 1999, Inspector DiAntonio (DiAntonio), of the Registrar’s office, performed an inspection and issued a Corrective Work Order (CWO) on April 5, 1999. The CWO required the Respondent to: K) Correct leaking and algae formation at the textured stone pool perimeter; L) Correct defect in pool finish such as trowel mark, footprints or rough edges; M) Determine and correct rock texture (chipping and peeling) problems; N) Correct pop-ups. The Respondent corrected the pop-ups and attempted other corrections by grinding and painting the interior of the pool, and coating the textured rock with some type of a dye. DiAntonio is no longer employed with the Registrar and Inspector Bob Mechsner (Mechsner) performed a pre-hearing inspection on October 1, 1999. Mechsner determined that cracked mortar allowed water to leak and caused efflorescence of the textured rock perimeter. This also accounts for algae at various areas where the textured rock meets the deck. The bottom of the pool was wavy in the area of the pop-ups, there is a stain which appeared to be a rust stain coming through the paint which is chipping or otherwise spotting. According to Mechsner, leaving a pool with only a concrete finish is very unusual. Concrete will allow leaking with undesirable consequences among them the potential rusting of rebar. Conclusions Of Law The allegations of the Citation and Complaint involve A.R.S. §32- 1154(A)(2), disregard of plans or specifications; (A)(3), failure to comply with any rule, specifically A.A.C. R4-9-108 workmanship; (A)(7) wrongful or fraudulent conduct with substantial injury; and (A)(23) failure to take appropriate corrective action. There is insufficient evidence to sustain a violation of A.R.S. §32- 1154(A)(2). The only evidence on this issue concerned the color of the pool which the Complainant testified was to have been dark blue but actually looked green. Matters of slight color variation are subjective and unless the parties had objectively agreed to a specific color by sample, there is no way to determine the agreement of the parties. The bottom and sides of the pool were painted white for a corrective purposes. Since this corrective work appears to have been an agreed to modification, it does not, under the facts of this case, constitute a deviation from specifications. Violations of A.R.S. §§32-1154(A)(3) and (A)(23) are established by a preponderance the evidence. This is based on the Respondent’s failure to properly construct the natural rock perimeter which resulted in the leakage, effloresence, algae formation. The problem has not been satisfactorily corrected. Additionally, the attempted correction of defects in the pool finish resulted in waviness around the pop-ups. The painting of the pool did not achieve the intended result because the paint is chipping. Based on the evidence, finishing the original interior of the pool in concrete and then subsequently painting the concrete for corrective purposes, does not appear to be an accepted practice or satisfy workmanship requirements. In light of the violations found in paragraph 2 above, there is no basis for finding an independent violation of A.R.S. §32-1154(A)(7). 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-05 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the cracked mortar and leaking perimeter of the pool including the algae and efflorescence problem, as well as the waviness at the pop-ups, rust coloration and chipping paint in the interior of the pool and any water leakage into or through the concrete interior of the pool. 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, October 13, 1999.

________________________________ ALLEN REED Administrative Law Judge

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

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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826