ALJDEC

00F-RF0327-ROC · Registrar of Contractors · 2000-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, October 12th, 2000; 9:00 a.m. APPEARANCES: The complainant, Mr. Jacob Stern, appeared and represented himself. The respondent, Fiber Industries, Inc., was represented by Mr. Tim Wittges, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing on October 12th, 2000. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. This recovery fund case grew out of the respondent’s installation of a new fiberglass shell in the complainant’s existing concrete pool at his residential home in Tucson. The contracted work was performed by respondent in the summer of 1997. 2. Complainant was dissatisfied with the respondent’s work product and filed the first of two administrative complaints against the respondent with the registrar on November 30th, 1998. This case was denominated T99-0417. 3. That complaint was assigned to Registrar of Contractor’s Inspector Bob Gibson. Inspector Gibson conducted a job-site inspection and issued a Corrective Work Order to the respondent dated December 17th, 1998. In it Inspector Gibson directed the respondent to “Correct pool flexiglass surface in both areas where it has buckled.” And he ordered respondent to “Correct flexiglass resurface at areas where flaking off.” These corrections were not performed by respondent within the time allotted by the Inspector’s CWO, and complainant requested an administrative hearing. The administrative hearing in T99-0417 was duly held on June 9th, 1999. 4. The next day, June 10th, 1999, the complainant filed his second administrative complaint against the respondent involving the same work performed on his pool by the respondent. This case was denominated T99- 0842. 5. Case T99-0842 was assigned to Registrar of Contractor’s Inspector Mr. Richard C. Allen. Inspector Allen conducted a job-site inspection and issued a Corrective Work Order to the respondent dated July 13th, 1999. In it Inspector Allen ordered the respondent to: “Correct all swimming pool fiberglass and coating defects throughout by appropriate means, including peeling and separating from substrate. Contractor is responsible for water and chemicals when pool needs to be drained for repairs.” 6. Following the aforementioned administrative hearing in case T99-0417, the registrar issued his final decision and order in that case on August 4th, 1999. The registrar’s decision was favorable to the complainant. The registrar concluded that the respondent’s work was not up to minimum workmanship standards, and ordered the respondent to make the corrections which had been ordered by Inspector Gibson, on or before September 8th, 1999. 7. The registrar did not conclude that the respondent had violated A.R.S. §32-1154.A.23., inasmuch as the complainant had not allowed the respondent to complete the repairs pending examination of the site by a concrete contractor. Thus respondent was exonerated from failing to timely comply with Inspector Gibson’s CWO, valid justification having been found by the registrar. Nevertheless, the final decision and order of the registrar in T99-0417 once again directed the respondent to make those corrections to the poor workmanship of complainant’s pool on or before September 8th, 1999. Respondent did not make any corrections to the complainant’s pool. Respondent’s license was subsequently suspended by the registrar and remains so to this day. 8. Complainant filed the instant recovery fund claim against the respondent on February 23rd, 2000. 9. On May 9th, 2000, Inspector Gibson completed his Recovery Fund Inspection Report. That report and the two price quotes on which the inspector relied are an evidentiary exhibit to this hearing. Complainant had supplied the recovery fund with two bids from appropriately licensed contractors to perform the work respondent was ordered by the registrar to perform. (He had made good faith and commendable efforts to procure a third bid, but was unable to do so.) The higher bid was by Aquatic Coatings, Inc., and was in the amount of $9,947.00. The lower bid was by Fibre Tech West, Inc., and was in the amount of $9,416.40. Inspector Gibson recommended payment from the recovery fund in the amount of the lower bid, $9,416.40. 10. Administrative hearing in case number T99-0842 was held on May 18th, 2000. The registrar issued his final decision and order in that case on June 6th, 2000. Once again the decision was favorable to the complainant. The registrar concluded that the respondent’s work was not up to minimum workmanship standards and ordered the respondent to have the corrections ordered by Inspector Allen performed by another appropriately licensed contractor on or before July 16th, 2000. By this time it was obvious that the two parties could not cooperate toward completion of the corrections as between themselves. 11. In case T99-0842, just as in case T99-0417, the registrar found that the respondent had been prevented by the complainant from complying with the CWO within the allotted time period. Thus the registrar concluded that the respondent had not violated A.R.S. 32-1154.A.23., there being valid justification for his not doing so. Nevertheless, the registrar ordered the respondent to have another appropriately licensed contractor to make the corrections on or before July 16th, 2000. Respondent did not have any corrections performed to the complainant’s pool by any contractor. 12. This administrative hearing, relative to the recovery fund claim, was held on October 12th, 2000. Complainant testified. Respondent testified in the person of its President and Qualifying Party, Mr. Richard Neasham. Also testifying were Inspector Gibson, and Mr. Troy Neasham, adult son of Mr. Richard Neasham. 13. Inspector Gibson testified as to his Recovery Fund Report and his consideration of the two bids complainant had supplied to the fund. Inspector Gibson testified that he considered the lower bid an appropriate bid to perform the corrective work. 14. Mr. Neasham produced other bids, far lower in their amount than either of the two bids supplied by the complainant. He also supplied some computations on the work figured by the complainant, but those have little or no probative value as they were the work of the complainant and not in the form of a licensed contractor professionally bidding for a job. Respondent’s proffered bids seem unrealistically low to adequately perform the corrections the registrar has ordered. 15. Respondent had a bid from Mesa Fiberglass, Inc., of Tucson, in the amount of $650.00. This bid was to repair two spots in the pool. This bid, it may fairly be inferred from the evidence of the bid itself, is not from a licensed contractor. The bid is of evidence, and is on printed stationery of Mesa Fiberglass, Inc. The stationery includes the address, telephone and facsimile numbers of the bidder’s Colorado and Arizona offices, but nowhere includes any contractor’s license number. A.R.S. §32-1124.B. would require Mesa Fiberglass, Inc. to display its license number on this stationery, if it in fact had a license. Too, the bid amount is $650.00, an amount below the threshold amount of $750.00, above which a contractor’s license is required (A.R.S. §32- 1121.A.14.). The registrar’s decision and order in case number T99-0842 requires the respondent to have the corrective work performed by an appropriately licensed contractor, something Mesa Fiberglass, Inc., does not appear to be. 16. Likewise, respondent’s second proffered bid from Glas-Tec, of Tucson, Arizona, is not persuasive. It is in the amount of $625.00. It proposes to repair two spots, just as the Mesa Fiberglass, Inc. bid proposed to do. The bid is of evidence and is on pre-printed stationery of the bidder. Nowhere on the exhibit does a license number of Glas-Tec appear, and the bid amount, just as Mesa Fiberglass’s bid amount, is conveniently below the $750.00 amount triggering the legal requirement for a contractor’s license. 17. Respondent’s third bid was from Mr. Troy Neasham, of A-1 Fiberglass. It appeared from the testimony of Mr. Troy Neasham that he, as A-1 Fiberglass, and his dad, as respondent Fiber Industries, Inc., pretty much work “hand-in-glove”. Mr. Troy Neasham’s bid lacks credibility for the same reasons found in the previous bids. Mr. Troy Neasham is not licensed by the registrar. The credulity of this fact-finder is strained when there exist two bids by appropriately licensed contractors, each in excess of $9,000.00, and alongside them a bid from an unlicensed bidder that purports to bid on the same corrective measures, in the amount one dollar below the threshold amount for requirement of a contractor’s license, or $749.00. 18. Again it bears mentioning that by force of the registrar’s final order in T99-0842, the respondent is now obliged to have the corrective work performed by an appropriately licensed contractor. This precludes the bids of Mesa Fiberglass, Inc., Glas-Tec, and A-1 Fiberglass. 19. Respondent did produce one bid from Charles Anderson who appears from the bid which is in evidence to be an appropriately licensed contractor. Mr. Anderson’s bid amount is $849.95, plus tax. However, Mr. Anderson expressly states that his work will not be warranted, and expresses his opinion that despite his work, due to other conditions, he has serious concerns that his work will fail just as did the respondent’s. 20. It appears that the two bids submitted by complainant are the only two of record that are believable, professional bids from appropriately licensed contractors to perform the corrective work. Inspector Gibson thought so, and recommended complainant receive from the fund the amount of the lower bid. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. Complainant is a “person injured” as meant by A.R.S. §32-1131.3. 3. Under the facts and circumstances of this case, the registrar is authorized to determine and award proper payment to the complainant from the contractors’ recovery fund pursuant to A.R.S. §32-1154.E. 4. An amount appropriate to be awarded to the complainant in this case is the lower of the two bids he supplied to the fund, that is, $9,416.40, all of which should be chargeable against the respondent and/or persons appearing on the respondent’s license as set forth at A.R.S. §32-1139.B.

RECOMMENDED ORDER In view of the foregoing it is hereby recommended that on the effective date of this order the Registrar of Contractors shall cause payment from the contractors’ recovery fund issue to the complainant in the amount of $9,416.40. Done this day, October 26th, 2000.

________________________________ GRANT WINSTON Administrative Law Judge

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

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 5007

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488