ALJDEC

99F-M0270-ROC · Registrar of Contractors · 1999-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 1999. APPEARANCES: Complainant appeared personally and was assisted by his attorney, Sharon Shively, Esq. The Respondent appeared through its owner and qualifying party, Brent Garrett. 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. Complainant purchased his home from Robert Milne in October of 1997. 2. While negotiating the purchase of the home, Complainant inquired to Milne about the swimming pool. Milne told the Complainant that the pool had been constructed by licensed contractors. 3. Milne served as the owner/builder of the swimming pool. 4. Respondent is the holder of License No. 122756, a Class B-05 general swimming pool contractor license. Respondent’s license was issued by the Registrar of Contractors on April 4, 1997. 5. Prior to commencing construction of the pool, Milne met with Respondent’s owner and qualifying party, Brent Garrett, together with Chuck Bentley of Crystal Blue Pools. Garrett and Bentley identified themselves as partners who were not yet licensed. Bentley and Garrett told Milne that they would oversee all subcontractors on the project after they received their contractor’s license. 6. Bentley and Garrett later told Milne that they had obtained the required contractor’s license. However, Crystal Blue Pools has never obtained such a license. 7. Milne entered into an agreement with Crystal Blue Pools for the design and construction of the swimming pool. 8. Bentley and Garrett hired all subcontractors for Milne. 9. Respondent Garrett admittedly did perform plumbing work on the project. Milne paid Crystal Blue Pools the sum of $1,520.00 for the plumbing work. 10. After Complainant purchased Milne’s residence, he observed a gap forming between the decking and the pool. 11. The gap in the decking got wider. Complainant contacted Bentley about the widening gap. Bentley advised Complainant to contact his homeowner’s insurance carrier to file a claim for the damage. Complainant’s insurance carrier denied the claim. 12. Complainant went to the Registrar of Contractors to file a complaint against Crystal Blue Pools but was advised by that office that Crystal Blue Pools was unlicensed. Complainant then filed a complaint against Respondent. 13. There was credible evidence that Bentley had told Complainant that his company builds swimming pools under Respondent’s Class C-05 license. 14. The decking subcontractor, a friend of Respondent’s owner, testified that he knew that there were drainage problems in Milne’s backyard but proceeded to install the decking without taking, or requiring, any remedial work to alleviate those problems. 15. The Registrar of Contractors’ assigned inspector performed an inspection of the pool in response to the filed complaint. The inspector determined that the pool deck had heaved approximately ¾” to 2” at the bond beam and had lifted all around the pool. The inspector also opined that drainage was not an issue. 16. As a result of the inspector’s inspection, the inspector issued a Corrective Work Order dated November 24, 1998, directing Respondent to repair the deck heaving by appropriate means. 17. Respondent has not complied with the Registrar’s written directive. 18. Despite Respondent’s disclaimer of responsibility for the heaving deck, it is held that the involvement of Respondent’s owner and qualifying party as above described set the force in motion to allow Milne, and subsequently the Complainant, to become a victim of poor workmanship by an unlicensed contractor. Thus, Respondent’s actions are deemed to constitute aiding and abetting the unlicensed acts of Crystal Blue Pools both prior to and during construction. While Respondent has not been charged with aiding and abetting an unlicensed contractor, it does constitute a matter in aggravation when contemplating any overall shared or separate responsibilities as well as the imposition of conditional or outright disciplinary penalties in this matter. 19. As part of Complainant’s insurance claim, an inspection of the pool was performed and a written report generated by a registered professional structural engineer. The engineer concluded that the heaving of the deck was the result of expansive soils common in the Gilbert area. He recommended, among other things, that a geotechnical engineer be hired to evaluate the soil conditions for classification, moisture content and swell potential. 20. It is determined that a soils analysis should be performed as recommended by the engineer’s report admitted into evidence. It is further found that remedial work should be performed to the soil as necessary to provide a suitable sub-surface for the swimming pool. The decking should then be removed and replaced to minimum workmanship standards. Respondent is found to be responsible for all costs and expenses for accomplishing such analytical and remedial work. 21. Respondent’s owner and qualifying party in his aiding and abetting the unlicensed Crystal Blue Pools, in his performing plumbing work for the unlicensed Crystal Blue Pools, in his conduct with Crystal Blue Pools during the negotiations and construction of the swimming pool and in his failure to comply with the Registrar’s written directive are found to have committed wrongful acts which have substantially injured Complainant.

CONCLUSIONS OF LAW

1. Respondent’s misrepresentations communicated to Milne were found to be instrumental in setting the force in motion which allowed Milne, and Complainant as the subsequent homeowner, to suffer damages via work performed by an unlicensed contractor. Such misrepresentations constitute a violation of A.R.S. § 32-1154(A)(7). 2. Respondent is chargeable, under all of the facts and circumstances presented herein, with responsibility for the defects in workmanship presently existing in the Complainant’s swimming pool, with violations of A.R.S. §32-1154 (A)(23) and (3); namely Rule R4-9-108. 3. The Registrar of Contractors has discretion to impose a civil penalty not to exceed five hundred dollars on a licensed contractor for each violation of A.R.S. §32-1154(A)(23). A.R.S.§32-1154(D). Given the nature and expense of the analytical and remedial work required to be performed at Respondent’s cost and expense in this matter, the Registrar should exercise its discretion not to impose a civil penalty on Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order that Respondent’s Class B-05 license be suspended until the Registrar of Contractors receives written proof that the items set forth in Findings of Fact Nos. 19 and 20 above have been appropriately rectified by Respondent. It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place. It is further recommended, in addition to the foregoing suspension, if any, that Respondent’s license be placed on suspension for a period of 5 days, followed immediately by a period of 120 disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of the entered Order is filed with the Registrar of Contractors, whichever is later.

Done this day, July 21, 1999.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail/fax this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater 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