ALJDEC

98F-M1224-ROC-res · Registrar of Contractors · 1999-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 1999.

APPEARANCES: Complainant, Leslie Morris, appeared in her own behalf.

Respondent, Hawaiian Pools, Inc., was represented by its attorney, Roger C. Decker, Esq.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

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. Pursuant to a written proposal and contract, Respondent agreed to and did perform pool remodeling work on Complainant’s vinyl liner pool. The previously existing metal walls around the upper portion of the pool structure were left in place, and added concrete was poured over the floor base. The agreement contemplated a complete resurfacing application with fiberglass materials. Additionally, Respondent was to provide and install an in-floor system of pop-up cleaning heads and a water leveler.

2. The parties’ written contract specified a cost price for the remodeling work of $10,698.75, payable through a financing arrangement with a lending institution whereby checks would be released to Complainant for transmittal to Respondent. It appeared that after the delivery to Respondent of two payments representing a substantial portion of the total contract price, the approximate sum of $3,200.00 was withheld by Complainant for a prolonged time period. These monies had been issued by the lending institution in the form of two separate checks that had been released into Complainant’s possession. However, at the time of the scheduled hearing, it was admitted that all monies payable by Complainant under the parties’ contract had been fully remitted to Respondent.

3. After Respondent’s original fiberglass application work, a significant leaking condition traceable to the pool light fixture prompted the undertaking and completion by Respondent of the removal and reapplication of all fiberglass materials. The subsequent discovery of several very small but visible rust spots and some observable lumps on the bottom surface resulted in further remedial efforts by Respondent’s selected subcontractor consisting of two separate complete re-sandings and fiberglass re-coatings.

4. Although the evidence was inconclusive as to whether or not the agreed remodel work required a building permit from the local municipality, Respondent did subsequently obtain a permit as well as inspections, none of which revealed any code violations or other construction concerns by the municipal authorities that remained uncorrected. Some relatively minor suggestions by the City’s Inspector were implemented by Respondent.

5. During the course of presenting evidence and testimony at the hearing, the parties effectively resolved one of the issues relating to whether the depth of the pool

structure, as ultimately finished after Respondent’s remodeling work, was sufficient for a diving pool. A written acknowledgment and certification that the present measurements of this pool’s diving envelope meet or exceed applicable requirements and standards was tendered by Respondent and accepted by Complainant at the hearing.

6. Several amendments were made to the originally filed complaint and were addressed by the parties’ respective evidentiary presentations. However, another item of complaint sought to be added at the hearing related to the reappearance of a small rust spot on the wall at the shallow end of the pool adjacent to a water intake fixture. It was not disputed that no advance notice was communicated to Respondent with respect to such item.

7. All traditional concepts of due process and fundamental fairness require that an adequate opportunity be afforded to any license holder to prepare and assert defenses to charged violations of the State’s contracting laws that would adversely affect the licensee’s ability to continue engaging in the construction business. Absent such opportunity, no finding of any contracting law violation is supportable with respect to an alleged workmanship deficiency reported for the first time during the administrative hearing on the merits. Consequently, it must be held that the uncommunicated reappearance of the single rust spot provides an insufficient basis for any disciplinary determination in this case based upon an asserted violation by Respondent of the charged workmanship provisions. However, Complainant remains free to file a new future complaint against Respondent with respect to this item of claimed deficiency.[1]

8. Complainant admitted that all items of her original complaint, as subsequently amended, were ultimately rectified by Respondent with the exception of her contentions that most all of the fiberglass surface was excessively rough, that ridges or lines had become visible on a portion of the pool’s floor, and that a peeling condition had started on the steps. The peeling problem was shown to have been wholly unfounded and illusory. Complainant also expressed her somewhat understandable fear that a significant amount of rust spots may appear or reappear on the pool’s surface. With respect to the last-mentioned item of concern or complaint, any finding that the fiberglass surface of this pool is presently vulnerable to an ongoing rust spot condition attributable to Respondent’s work or materials would be impermissibly based upon pure conjecture.

9. It must be found and determined that Complainant was unable to demonstrate by a preponderance of reliable, substantial and probative evidence that any portion of the pool remodeling work by Respondent presently falls below acceptable industry standards and tolerances. On the contrary, the weight of credible testimony, primarily from both expert witnesses and from a knowledgeable Registrar’s Inspector assigned to this case, tended to indicate that the overall appearance and texture of this fiberglass pool installation presently conforms to all prevailing workmanship requirements and expectations.

10. The Registrar’s Inspector had previously issued a written directive to Respondent after his initial jobsite visit. A main focus of such directive was the assumed necessity of obtaining a permit for the construction work envisioned under the remodeling contract. In any event, The testimony at the hearing, including that of the Inspector, revealed that all aspects of such directive have all been properly complied with by Respondent.

11. The evidence failed to establish that the parties had concluded a settlement agreement. Although a document was tendered by Respondent for the manifest purpose of resolving all disputed items and terminating the administrative complaint pending before the Registrar, several unilateral changes by Complainant to the contents of such document effectively voided the communicated attempt for resolution and became merely a counter- proposal which was never accepted.

12. The evidence further revealed that Respondent, without cost to Complainant, had provided numerous extra features that had not been encompassed within the parties’ contract. Some examples of such additional benefits, doubtlessly prompted by a commendable desire to satisfy or comply with its customer’s requests and demands, whether or not in agreement with same, included the following: The thickness of concrete furnished exceed the amount set forth in the contractual specifications; a new large DE filter was provided; the existing circulation pump was replaced; and an invoice from a veterinarian was paid following an unsubstantiated assertion that one of Respondent’s workmen injured Complainant’s dog (such paid invoice also charging for what appeared to be normal periodic shots unconnected with any such injury). Additionally, in light of the necessity to drain and to refill the pool several times as part of the corrective work efforts, Respondent was shown to have given Complainant a generous reimbursement for the cost of refill water and for replacement pool chemicals to help assure that no part of these costs would be borne by Complainant.

13. To hold merely that the Complainant/homeowner failed to sustain her required burden of proof as to the charged violations, as amended, would be misleading and incomplete. The Administrative Law Judge would be remiss in his duties if he did not expressly incorporate a Finding that, under all the circumstances,

Respondent’s actions herein far exceeded its expected obligations as a licensed contractor in this State and demonstrated a continued willingness to “go the extra mile” to resolve this matter.

CONCLUSIONS OF LAW

1. The evidence of record does not support any finding of violations by Respondent of the provisions of the State’s contracting laws charged in the issued Citation, as subsequently amended.

2. Mindful of an existing policy of the Registrar of Contractors, applicable primarily in cases that are belatedly settled or otherwise resolved prior to hearing, to “close” Citations and Complaints rather than to “dismiss” same whenever an assigned Inspector had previously issued a written directive, under all the facts and circumstances as presented to this tribunal, including some degree of uncertainty as to the actual need for a permit for this project, an Order of Dismissal is appropriate and fully warranted in this case.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number M98-1224 be dismissed.

Dated: May 17, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo ----------------------- [1] It must be further noted that Respondent avowed at the hearing that the small rust spot brought to its attention at the hearing for the first time would be the subject of prompt evaluation and appropriate remedial action under the applicable warranty program.

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