ALJDEC

99F-L0151-ROC · Registrar of Contractors · 1999-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 7, 1999 (Lake Havasu City, Arizona)

APPEARANCES: Complainant Terry Harstad appeared on his own behalf; Respondent was represented by attorney Harvey Jackson.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This complaint involves workmanship on a pool built in Lake Havasu City, Arizona for Complainants Terry and Joanne Harstad by Respondent Continental Quality Pools. This Administrative Law Judge took administrative notice of the ROC files for two prior complaints filed by Complainant against Respondent, Nos. L98-0162 and L99-0058. The parties presented evidence and testimony at the hearing and, based upon the entire record, this Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order for partial restitution. FINDINGS OF FACT 1. Respondent holds a Class B-05 General Swimming Pool Contractor license for the construction and repair of swimming pools and spas, including fencing and utilities connected to the pool or spa. Respondent built a swimming pool for Complainant in the summer of 1997. It was completed in July 1997. 2. Shortly after completion, Complainant noticed that the water level was dropping. He called Richard Lodisio, one of Respondent’s partners but not the Qualifying Party on the license. Lodisio represented Respondent throughout the course of the events at issue here (hereinafter, Lodisio will be referred to as “Respondent”). Respondent told Complainant that new plaster will absorb water and he shouldn’t worry. 3. Complainant waited a little longer. Still the water level dropped. He tried to contact Respondent again, but Respondent was “on vacation.” Therefore, Complainant hired American Leak Detection (“American”) to find any leaks. American located a leak and made repairs on July 23, 1997. (Exhibit B.) American also told Complainant that the deck and skimmer were separating. 4. A few days later the water level began dropping again. Respondent was still unavailable so Complainant had American perform another repair on august 7, 1997. (Exhibit C.) This time American told Complainant that the skimmer installation was improper. 5. Respondent returned from vacation and paid Complainant for the cost of the American repairs. The pool continued to leak and Respondent made minor repairs. Respondent also attached the skimmer to the pool in an attempt to repair the separation problem. 6. By December 1997, the leaking was continuing and it was obvious that there was a plumbing leak. Respondent dug up the plumbing area but could find no leak. Respondent hired American to locate any leaks, which American did in the return line. (Exhibit E.) Also, the skimmer was now leaking. Complainant says that he then “learned” from a friend that Respondent was not insured. However, Complainant submitted no other evidence showing that Respondent was not insured during that time. Therefore, Complainant has not proven that Respondent was uninsured. From that point on, Complainant would not allow Respondent to do repair work on the pool. 7. Complainant had American repair the leaks and the leaking stopped. At the hearing, Complainant submitted the bills for that work and requested restitution. (Exhibits D and F.) 8. In January 1998, after American completed the repairs, Complainant filed a complaint with the Registrar of Contractors (ROC). That complaint was numbered L98-0162. The complaint was a general complaint about the pool leakage. ROC Inspector Bill Spence performed two jobsite inspections. On February 2, 1998, Spence issued a letter (FL-7) closing the complaint without a Corrective Work Order (CWO) because Respondent had reimbursed Complainant for the earlier repairs and Complainant refused to allow Respondent to make any other repairs. The letter ended by stating that Complainant could request a hearing if he disagreed with the Inspector’s decision. 9. Complainant did not request a hearing in February 1998. Complaint L98-0162 was closed on February 20, 1998. 10. In October 1998, Complainant filed a new complaint that raised the same issue about the pool leakage. That complaint was numbered L99- 0058. ROC Inspector Jim Boyett (Spence was no longer there) inspected the pool and issued another letter (FL-7) closing the complaint. The December 10, 1998 letter stated, in bold type, the following: Based on previous complaint and current evidence there is some doubt as to who is responsible for problems with this pool. If you wish to pursue this matter with this agency it should be done through the Hearing process as outlined in previous correspondence with our Lake Havasu City office.

Complainant did not respond. In February 1999, complaint L99-0058 was closed. 11. On March 19, 1999, Complainant filed the instant complaint, L99- 0151. This complaint is basically the same complaint, except that in addition to the complaint about previous pool leakage, Complainant added specific complaints about the pool not being level and cracking in various places on the pool, the deck, and enclosure walls. New Lake Havasu ROC Inspector Barry Billlings inspected the pool and issued a CWO ordering Respondent to repair the cracking and level the pool. Respondent did not do any work and immediately requested a hearing. 12. At the hearing, Respondent called Bill Spence to testify on his behalf. After Spence left the ROC, he was hired by Respondent as an “expert.” Spence took numerous photographs of Complainant’s lot and the surrounding area (Exhibits 1 through 31). He basically testified that there was an expansive soil problem in the area where Complainant’s house and pool were built. No one, however, had a soil testing report for Complainant’s lot. 13. Since Barry Billings was no longer with the ROC at the time of the hearing, Boyett testified. His testimony was the most credible and well-founded. He noted that it was difficult to determine the cause of the soil movement on Complainant’s lot. He pointed out, quite correctly, that if there were expansive soil on the lot the responsibility for the problems would generally fall on the pool builder because he built on expansive soil. Boyett could not determine the cause of the problems noted in the Billings CWO without further information. 14. Respondent Richard Lodisio testified at the hearing too. He stated that he had hired American to find the leak in December 1998, but never authorized them to do the repair. He admitted that he had not reimbursed Complainant for the cost of that testing, $425.00. (Exhibit E.) He confirmed that he was not allowed to do any further repairs after that. 15. Complainant raised two new complaints at the hearing. He added complaints about the gas line and electrical line that Respondent installed. These complaints were not part of any prior complaint. Respondent objected. This tribunal took it under advisement. The objection is sustained because these complaints are clearly beyond the scope of all three prior complaint items and had never been raised until the hearing. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has not met that burden, except with respect to restitution for the December 1998 leak detection supported by Exhibit E. 2. The evidence does not show violation of A.R.S. § 32-1154(A)(3), poor workmanship, or (23), failure to comply with a properly issued CWO, as alleged in the Citation and Complaint. For several reasons, Complainant essentially abandoned any claims relating to the December 1998 leaking. First, he has not shown that he had good reason to prohibit Respondent from continuing to repair the pool. He stated that he believed Respondent was not insured at the time, but submitted no independent proof of it. Therefore, he unreasonably precluded Respondent from making those corrections and cannot now get restitution for American’s repair work (other than the leak detection). Also, Complainant had two chances to take his case to administrative hearing, yet he did not. The closure letters sent by both Spence and Boyett clearly stated that Complainant could have requested a hearing if he disagreed with the Inspectors. Since Complainant did not request hearings, he has abandoned his claim against Respondent that relates to the leaking. 3. As to the cracking and pool level claims, it is unclear whether they are related to the abandoned leaking claim. That damage could have been caused by the leaking, which Complainant chose not to pursue. On the other hand, it could be that the cracking is being caused by expansive soil. If that were the case, Respondent would normally be responsible for the cracking, since he has a duty to only build on stable ground unless he informs the homeowner of any potential problems and the homeowner takes the risk. See A Guide for Contractors: Minimum Workmanship Standards for Licensed Contractors, p. 41 (Oct. 1998, published by the Arizona Registrar of Contractors.) But, as pointed out by Inspector Boyett, the evidence is not clear as to what is causing the soil instability on Complainant’s lot. Therefore, even if the cracking is not related to the abandoned claim, Complainant has failed to show by a preponderance of the evidence that Respondent violated workmanship standards by building on expansive soil. 4. The evidence does not show violation of A.R.S. § 32-1154(A)(17), contracting beyond the scope of the license, as alleged in the Citation and Complaint. That citation was presumably based on the evidence that Respondent heightened one area of the brick wall that surrounds Complainant’s backyard. Inspector Boyett testified that Respondent was authorized to do that work and it was required to meet the law regarding fencing around swimming pools. 5. The evidence does not show violation of A.R.S. § 32-1154(A)(7) as alleged in the Citation and Complaint, except in the instance of reimbursement for the December 1998 leak detection. In that instance, Respondent admitted that he agreed to pay for American to detect the leak, but had not reimbursed Complainant for that. Exhibit E shows that the cost was $425.00. Thus, Respondent should be required to pay Complainant $425.00 in restitution. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B-05 license 103750 be suspended beginning on the effective date of the Registrar’s Order in this matter until Respondent has paid Complainant $425.00. IT IS FURTHER RECOMMENDED that if Respondent pays Complainant $425.00 before the effective date of the Registrar’s Order, the license suspension shall not take place and Citation and Complaint L99-0151 shall be closed.

Done this 3rd day of December 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of December 1999, to:

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

By ___________________________ -----------------------

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