ALJDEC

99F-M0113-ROC · Registrar of Contractors · 1999-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 1999 APPEARANCES: Dwight Watland, Attorney at Law, on behalf of the Complainants Steven Ripley, President, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact The Complainants were having a home built by UDC Homes, Inc. (UDC) in Gold Canyon, Arizona. The swimming pool for the home was to be built under a separate contract by someone other than UDC. The backyard of the Complainant’s home consists of an unspecified amount of fill with a five to eight foot retaining wall on the east side of the backyard. Below the retaining wall is a wash. The retaining wall was built prior to the pool excavation. The width of the Complainant’s back yard is approximately 25 to 30 feet from the east side of the house and patio, to the retaining wall. The Complainant’s contacted the Respondent’s pool consultant. The pool initially chosen by the Complainant’s had to be scaled down and modified to fit in the backyard. On September 7, 1997, the parties entered a contract for the construction of the swimming pool, including a spa, fountain, decking and other features. The contract price was $41,498.00. The contract contained numerous disclaimers which the Complainant initialed. One such paragraph relates to the Complainant’s (Owner’s) responsibility for structural damage to the pool due to expansive soil, rain, surface water, poor drainage and damage from landscaping. The pool was completed in January, 1998. It is a “play pool”, essentially rectangular with the spa at the southern end. The pool is made of a ”Pebble Tec” type substance and the deck is a salt finish concrete. Plants in the backyard consist of desert landscaping with a drip system which dispenses a gallon of water per emitter every three days. The total number of emitters is not specified. In April, 1998, the Complainants noted that the automatic fill valve for the pool seemed to be running constantly. A wet spot was noted in the wash on the other side of the retaining wall. The Respondent was contacted and found a crack that ran below water level in the pool. The crack was repaired. The repair did not solve the problem and the Respondent surmised that it could be a plumbing leak. A pressure test and additional inspection after the pool was drained showed no plumbing leak. However, a number of additional cracks were found inside the pool. The deck was also cracking. The cracks in the pool were patched and the pool fill valve stopped running continuously. The crack in the deck was filled with a material that does not match the original deck material and the difference is noticeable. The Complainant and Respondent initially exchanged phone calls in order to address the various problems. After the unsuccessful attempts to correct the condition the parties began exchanging correspondence. The instant complaint was filed with the Registrar of Contractors (Registrar) on July 27, 1998. A report regarding the Complainant’s home, done for Farmer’s Insurance Company by Semmens Investigative Engineering (SEI), dated June 25, 1998, states that the subject soil had some compaction problems, that soil consolidation or lack of consolidation and variation in gradation of material led to the cracking and settlement /consolidation of the concrete. The inspections for this report were made in late May, 1998. Numerous soil samples were taken from 12 and 24 inches. The findings also included that a deck slab which appeared out of level. A report of the Complainant’s home by Construction Inspection and Testing Co. (CIT), done for Shea Homes and dated September 25, 1998, states that the major slab cracks are most likely due to inadequate soil compaction coupled with moisture infiltration. The pool was noted to tilt from west to east by a half inch. James Walsh (Walsh), an inspector with the Registrar’s Office, performed an inspection on September 30, 1998. He determined that the cracking, including that which was repaired, of the pool shell and decking did not meet minimum workmanship standards. On October 2, 1998, Walsh issued the Corrective Work Order (CWO), which required the Respondent to have the pool area inspected by an engineer to determine the cause of pool and deck failure, and to make all repairs necessary to bring the pool shell and deck within industry and minimum standards. A report by Terrane Engineering Corporation (Terrane), dated October 20, 1998, and done in response to the CWO, provides the conclusion that distress features are a result of settlement of fill supporting the pool and that fair to poor drainage around improvements is a contributing cause.

Based on a review of the above referenced reports and an inspection of the Complainants property on February 17, 1999, Tom Thomas (Thomas), a civil engineer, agreed with the general conclusion in those reports that the cracking was due to the settling of fill soil. The pool also showed a 2.1 inch tilt from the northwest corner to the southeast corner at the spa. The evidence shows that there is some expansive soil (clay) in the fill but that the amount does not account for soil movement in the Complainant’s back yard. On February 17, 1999, Walsh performed a pre-hearing inspection. Temporary filler had been put in some of the cracks but the pool and deck are still unsatisfactory. The parties do not dispute that the cracks in the deck and pool are not within acceptable standards. Walsh noted the tilt of the pool had increased since the prior inspection. Conclusions Of Law The Citation and Complaint allege violation of A.R.S. §32-1154(A)(3) violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, (A)(7), the doing of a wrongful or fraudulent act, and (A)(23) failure to take appropriate remedial action. The parties do not dispute the cracks in the pool and decking do not meet minimum workmanship standards. The Respondent’s position is that it is not responsible because the Complainant’s backyard should have been made “pool ready”, presumably by the developer or home builder. Additionally, the Respondent offered some evidence in support of his contention that inadequate drainage is a cause of the settling. However, the weight of the credible evidence shows the primary if not sole cause of the settling is due to inadequate soil compaction most likely coupled with lack of soil consolidation. The issue is one of who is responsible for the failure to properly compact and/or consolidate the fill in the backyard so as to adequately support the pool. Regardless of any claim that the Respondent may have with respect to the developer or builder of the home, as between the Complainant and the Respondent, the responsibility is squarely on the Respondent. The evidence of inadequate drainage and excessive water from watering plants, rain or runoff, is insufficient to establish that they are the major cause or a significant contributing cause of the movement and settling. The logic of Minimum Workmanship Standards for Licensed Contractors, 6th edition, June 1994, page 32 relating to site work and soil conditions (Site Work 3. CR), applies as much to the installation of a pool as it does to the construction of a foundation and slab. The disclaimer provision referenced in paragraph seven of the Findings of Fact are given little consideration in light of the conclusion that compaction and consolidation of the soil are found to have been primarily causative of the settling and resultant damage to the pool and deck. Those issues are not specifically mentioned by the disclaimer making said disclaimer and any conclusion on its legal significance, inapplicable to the facts of the case. Violations are therefore found of the provisions of A.R.S. §32-1154(A)(3)/ AAC R4-9-108 and A.R.S. §32-1154(A)(23). It is noted that the Respondent complied with part of the CWO by having Terrane do the required study. There is no evidence of fraudulent conduct and in light of the violations found, no finding of wrongful conduct is made because the Respondent made efforts to address the problem and had a good faith belief that the soil problem was not its responsibility. RECOMMENDED ORDER In view of the foregoing it is recommended commencing the effective date of the Order entered in this matter that the Class B-05 license of the Respondent be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the pool shell, pool deck areas, and the tilting of the pool to bring these within industry and workmanship standards; 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, February 26, 1999.

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of February, 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 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826