ALJDEC

99F-M1254-ROC · Registrar of Contractors · 2000-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 17, 2000. APPEARANCES: Paul Steen, attorney for Complainants; Don and Brenda Chapman, Complainants; Paul Rybarsyk, attorney for Respondent; Gene and Barbara Pelletier, Respondents; James T. Walsh, Registrar of Contractors Inspector; Edgar Miller, witness; Mike Twilling, witness; and Jesse Wyatt, witness. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Don and Brenda Chapman had Gene Pelletier, co-owner of G and B Design Builders, install a pond of shallow water made of cement with two small spouts for fountains. They later believed the pond to be leaking and filed a complaint with the Registrar of Contractors. A Corrective Work Order issued as a result stated that the Chapmans were to have penetrations subsequently made in the pond properly sealed and then Pelletier was to check for leaks. Since the Chapmans never had the penetrations sealed, it has not been established that there are any leaks or that they may be due to Pelletier’s work. Therefore, I recommend that this appeal be denied. FINDINGS OF FACT 1. Don and Brenda Chapman wanted a pond installed on their property similar to what they had seen at a large homeowner’s association but smaller. They contracted with Gene Pelletier of G and B Design Builders, the licensed contractor, to install a 1’6” deep pond of cement with two spouts. 2. Pelletier installed a layer of plastic, such at that used under ponds for golf courses, then laid steel mats to hold the cement in place and minimize cracks. He next poured the cement in three pours and fused the slabs with cold joints. 3. After the cement was finished, Don Chapman stated that he was pleased with the work. He later became alarmed when his water bill increased. He called Pelletier and complained about it. Pelletier reassured Chapman that they had drained and refilled the pond three times during construction and water use would not be that high normally. Chapman, however, became concerned that the pond was leaking and began to test it himself. He filled a bucket and left it by the pond to compare how the two depleted. If the bucket water sank slower than the pond, that would mean that the pond was losing more water than is normally lost through evaporation. 4. Pelletier was still working on other projects on the property while Chapman ran the test and saw no evidence of leaking. Still, Chapman was concerned. He let the pond go dry for several months. He also had another contractor install equipment to clean it automatically. The pond was filled again at one point but sat dry for several months as well. Chapman is now complaining that the cement is cracking and the cracks are making the pond leak. 5. Pelletier testified that the cement is normally a little porous and is not intended to hold water. He stated that it is the underlying plastic that should hold the water and the cement is there to weigh it down. He also stated that the cement would crack more if the pond is empty and that the subsequent installation of cleaning equipment is probably the cause of leaks, if indeed there are any leaks. 6. Chapman argued that the pool leaks. He filed a complaint accordingly and the Registrar of Contractors Inspector issued a Corrective Work Order. The order stated that Chapman was to have “all penetrations of the pool caused by others” properly sealed and then Pelletier was to test the pool and repair leaks, if any. The Inspector testified at hearing that he could not determine if the pond was leaking because it held no water. He could see that there were some cracks and penetrations. Chapman stated that he did not have the penetrations sealed because Pelletier demanded a guarantee by the pool company that their seals were not causing leaks. 7. Chapman had an engineer inspect the pool. The engineer testified that in his opinion the pond would not hold water because of the cracks in the cement. He described how he would make a cement pool in which the cement would not crack very much. He also admitted that he did not test the pond for leaks. He stated that sitting empty would increase the cracks but that plastic was indeed under the slab. 8. Pelletier stated that he did not require a guarantee but wanted reassurance in writing that the sealing work had been done prior to him testing the pond. This was to avoid further confusion. He also testified that the pond was fed by a ¼ inch pipe. According to Chapman’s testimony, the pond added 5000 gallons a day to his water bill. Pelletier argued that there would be no way that a ¼ inch pipe could feed the pond fast enough to increase a water bill that much, if indeed there even was a leak. He argued that Chapman just wants a new pond with filtering system without paying for it and is using his complaint to get it. 9. On the whole, testimony at hearing showed that penetrations were made to the pond after it was finished; that the pond was never established to be leaking; that, though the concrete may crack, it is the plastic which prevents leaks; and that Chapman did not have the penetrations sealed as required by the Corrective Work Order. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. It should be noted that the Registrar of Contractors’ booklet Minimum Workmanship Standards for Licensed Contractors allows that cracks in concrete are acceptable to some extent. Though it gives no standards for ponds, this does indicate that cracking of concrete and cement is normal and expected. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 7. In this case, the Complainants have not established that the pond was leaking. Though they claimed the water bill went up, the claim was not supported by an actual water bill or a test of the pond. Their expert testified on how to make cement hold water but then admitted that the pond was lined in plastic. Therefore, allegations of wrongdoing or poor workmanship should be dismissed based on lack of evidence of any problem with the work. 8. In addition to the above, Complainants have not completed the pre- conditions to the Corrective Work Order by having the penetrations sealed. Without their compliance with this provision, the Pelletier’s duty to test for leaks never commenced. Any obligation Pelletier had to determine whether there were leaks should be discharged by the non-cooperation of Complainants. Therefore, the allegation of failure to take corrective action should be dismissed as well. RECOMMENDED ORDER Because there is insufficient evidence that the Complainants’ pond leaks and because Complainants have not cooperated with the Corrective Work Order, I recommend that this matter be dismissed in its entirety with no action taken against Respondent’s license.

Done this day, April 26, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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