ALJDEC

99F-L0127-ROC · Registrar of Contractors · 1999-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 1999 APPEARANCES: Complainant was represented by his attorney, Jack Lahman and Respondent was represented by its attorney, Harvey Jackson. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to written contract, Respondent constructed a new pool for Complainant. Complainant alleges a specified deficiency in the pool construction and same is discussed in the findings below. 2. At the outset of the scheduled hearing, it appeared that Complainant was attempting to add new issues to the complaint which were either not set forth in the original filed complaint or discussed at the original jobsite inspection conducted by the assigned Registrar inspector. Respondent objected to what appeared to be an attempt to effectively amend the complaint at the hearing and said objection was sustained on due process grounds. Nevertheless, it was later determined and held that any issues which tended to explain the cause of the main complaint were proper to be heard at the instant hearing. 3. Based on the foregoing, it was held that the issue of who was responsible for the first month of chemical care and maintenance of the pool was a proper issue to be considered at this hearing. 4. The following salient facts were adduced at the hearing and are important to note: a. On or about October 22, 1997, the parties entered into the contract for the construction of the pool. The contract was drafted by Respondent and specifically provides for “one month free chemical service.” b. Construction on the pool began in December 1997 and the evidence presented at the instant hearing showed that the project was completed in the latter part of March 1998. c. Complainant testified that he never owned a swimming pool prior to having the pool built by Respondent, that he did not receive any instruction on how to maintain the pool and that pursuant to the contract he expected Respondent to maintain the pool water chemistry for the first month, subsequent to filling the pool with water. He further stated that he never saw anyone from Respondent appear at his home, for the purpose of dealing with the pool water chemicals during the first month after the pool was filled. d. Complainant testified that he called Respondent on several occasions during the first month after the pool was filled with water and received no response from Respondent. Finally, when he started observing that the water was turning green and there was algae in the pool, he ultimately hired a private pool maintenance company to treat and maintain his pool water. e. The aforementioned pool maintenance company’s owner appeared at the instant hearing and testified that when he arrived at Complainant’s property, approximately three weeks after the pool had been filled with water, he observed that the pool water was green, there was no chlorine in the water, that there was extensive check cracking throughout the pool and the pool plaster was discolored. He further testified that the pool looks the same today as it did the first day he observed same. f. In February 1999 Complainant filed the instant complaint with the Registrar of Contractors, claiming that there were extensive check cracks throughout the pool. g. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent the parties a letter on the Registrar’s RC-C-007 form, indicating “it appears that the discoloration present in this pool’s plaster is due to improper water chemical balance. Based on available evidence, there is some doubt as to who is responsible for the problems with this pool” (emphasis added). Thus, based on this report from the Agency inspector, it is clear that the issue of the pool discoloration was not only considered at the jobsite inspection but moreover, was an issue for which Respondent received proper notice of prior to the time of the instant hearing. h. Respondent’s witnesses testified at the instant hearing that at the time Complainant’s pool was built the salesman for the pool should have instructed Complainant on how to maintain the pool. Further testimony by Respondent’s witnesses indicated that Respondent did install the “start-up” chemicals for the pool and that on one occasion, during the second week after filling the pool, the chlorine was checked and was at a normal level. i. Respondent’s president appeared at the hearing and testified that he observed the condition of the pool and that the discoloration was extensive and the “pool looked bad.” j. It was undisputed that the pool plaster evidences a distinct “turtle shell” pattern due to the extensive discoloration. 5. Although the evidence of record failed to show that the “check cracking” itself was abnormal or was indicative of any open cracks that should or could be filled, the weight of the evidence of record was sufficient to support a finding that the extensive discoloration in the pool plaster finish was due to improper chemical maintenance of the pool water during the first several weeks after the pool was filled.

6. Further weight of the evidence and testimony presented at the hearing was sufficient to support a finding that Respondent failed to comply with its contractual obligation to maintain the pool water for the first month after filling the pool with water and failed to provide Complainant with adequate instruction on what to do with his pool water. Based on this breach of contract, it is determined and held that Respondent is responsible for the poor water chemistry that is found to be the proximate cause for the significant discoloration on the pool plaster. 7. The discoloration on the pool plaster supports a determination that the pool plaster was unfit for its intended aesthetic purposes, as impliedly warranted by Respondent and that the plaster’s appearance reflects an unworkmanlike result, warranting not only a finding of a violation of the applicable charged provisions of the State’s Contracting laws in regard to good and proper workmanship but moreover, a finding that Respondent’s failure to comply with the contractual provision to properly maintain the pool water chemistry for one month after initial start-up constituted a wrongful act within the meaning of the charged section of the State’s Contracting laws. 8. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractor’s orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that there were no prior disciplinary orders on the Registrar of Contractor’s current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. . . . . . . . . . . . . CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

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 Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to remove the significant discoloration present in the pool plaster. It is further recommended that if 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 in that event, this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, December 23, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of December, 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