ALJDEC

99F-M1487-ROC · Registrar of Contractors · 1999-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, November 7, 1999 APPEARANCES: Complainants Margaret and Scott Brush appeared on their own behalf. Evan Price appeared on behalf of Respondent Price Pools, Inc. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is whether Respondent Price Pools, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent Price Pools, Inc (“Price Pools”) is the holder of a Class B-05 license (No. 140489) issued by the Registrar of Contractors (“ROC”). On January 13, 1999, Price Pools entered into a written contract with Scott Brush and Margaret Spriet (the “Brushes”) to construct a “spool” (part spa, part pool) at the Brushes’ residence in Gilbert, Arizona. Price Pools completed the construction on or about February 17, 1999. The contract states “Pool is to be built per scale drawing showing shape, size and indicating the location of the pool and equipment. All items listed on estimating sheet/plan indicate all items included.” The scale drawing for the Brushes’ “spool,” which was admitted into evidence as Exhibit 1, lists “PEB-TEC” as one of the specifications. The scale drawing does not indicate the color of the spool. On June 9, 1999, the Brushes filed a complaint against Price Pools with the ROC. The Brushes alleged “1.) We were sold a pebble tec pool surface and a generic surface was installed. 2.) The color that we paid for was ‘Tahoe Blue’ pebble tec; shadow blue ? was installed” (question mark in original). By letter dated June 17, 1999, the ROC, through Inspector Van Bagley, notified Price Pools “it is the opinion of this office from the facts now before us that unless the matter is resolved within ten (10) days after receipt of this letter, we may request that a citation be issued against your license so that this matter may be resolved by administrative hearing.” By letter dated June 29, 1999, the Brushes informed the ROC that the matter had not been resolved and requested a hearing. On August 27, 1999, the ROC issued a Citation and Complaint against Price Pools, charging Price Pools with violations of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans and specifications) and (A)(7) (wrongful act resulting in substantial injury). By letter dated September 6, 1999, Price Pools filed an answer to the Citation and Complaint. Evan Price, Price Pools’ owner and qualifying party, stated in Price Pools’ answer: “I went to great effort to explain to [the Brushes] my brand of pebble-tec, and took them to view several of my previous customers pools. They spoke to the customers and saw for themselves my brand of pebble tec, ‘natural pebble tec’. At the Curtis residence they observed the ‘Shadow Blue’ color of natural pebble tec. They spoke with Dan Curtis . . . and heard his high recommendation. At that time they chose ‘Shadow Blue’ as well.”

Mr. Price attached to Price Pools’ answer a September 5, 1999 letter from Mr. Curtis addressed “To Whom It May Concern” in which Mr. Curtis confirmed the Brushes’ visit to his home and their selection of the “Shadow Blue” color. Without objection from either party, the Administrative Law Judge took administrative notice of both Price Pools’ answer and the attached letter from Mr. Curtis. At the hearing, the Brushes reiterated the allegations of their complaint, i.e., they were told they would receive a Pebble Tec brand pool surface and a Pebble Tec brand color (Tahoe Blue), and instead received a pebble tec-like surface and a non-Pebble Tec brand color (Shadow Blue). The Brushes emphasized the “PEB-TEC” notation on the scale drawing as evidence of this representation upon which they relied. The Brushes also presented evidence at the hearing regarding cracking in their pebble tec surface. The Administrative Law Judge ruled that because the Brushes did not include this allegation in their complaint, the Office of Administrative Hearings could not properly, on due process grounds, render a decision with respect to that claim. The Administrative Law Judge advised the parties that to the extent such cracking had occurred, the Brushes would need to pursue that claim separately.[1] Evan Price appeared and testified on behalf of Price Pools. Mr. Price stated that in 1999, as of the hearing date, Price Pools had built approximately 100 pools. Mr. Price testified there are approximately 5 different brands of “pebble tec,” and that Price Pools uses the “natural pebble tec” product exclusively. Mr. Price stated that he explained this distinction to the Brushes. Mr. Price further testified that in response to the Brushes’ desire to see different colors, he took them to see pools at two of his former clients’ homes, including Mr. Curtis’ home. Mr. Price reiterated the statements in his answer to the ROC’s Citation and Complaint and in Mr. Curtis’ letter regarding the Brushes’ selection of the “Shadow Blue” color for their spool. The Brushes denied meeting Mr. Curtis. Mr. Price expressed his willingness to repair the Brushes’ spool, but stated he could not do so using Pebble Tec brand materials. CONCLUSIONS OF LAW In this administrative proceeding, the Brushes bear the burden to prove, by a preponderance of the evidence, the allegations of their complaint against Price Pools. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence ' 5 (1960). There was significant conflict in the evidence. The Brushes claim Mr. Price told them they would receive a Pebble Tec brand surface for their spool. Mr. Price claims he told the Brushes they would receive a different brand surface -- the “natural pebble tec” surface. The Brushes also claim Mr. Price told them they would receive “Tahoe Blue,” a Pebble Tec brand color. Mr. Price claims he could not have done so because he does not offer “Tahoe Blue” and because, in any event, the Brushes selected “Shadow Blue” during their visit to the Curtis residence. The Administrative Law Judge resolves these conflicts in favor of the Brushes. The confusion inherent in the existence of 5 separate “pebble tec” surfaces demands contractual precision on the part of a licensed contractor who elects to sell a “pebble tec” product. Thus, for example, by indicating “PEB-TEC” on the scale drawing, Price Pools did not make the distinction necessary to prevent confusion by its customers who may equate “peb tec” with the Pebble Tec brand name. Price Pools exacerbated this problem by failing to indicate on the scale drawing the spool’s color. While it is possible to see, from Price Pools’ perspective, that such notation would be unnecessary (i.e., if Price Pools sells only one shade of blue, and the client picks blue, what difference does it make to indicate “shadow blue” on the specifications?), the fact remains that such a notation should have been made to avoid the possibility of confusion between different brand colors (and therefore different brands). Mr. Price claims he carefully explained to the Brushes the distinction between the Pebble Tec brand and the brand Price Pools offered, i.e., “natural pebble tec.” The Administrative Law Judge found Mr. Price to be sincere, and finds that Mr. Price genuinely believes to have made this distinction in the Brushes’ case. However, the weight of the evidence is contrary to this claim. First, had this explanation been made as carefully as Mr. Price claims, the confusion which the Brushes experienced would not have occurred. That such confusion did occur suggests the Brushes believed at all times they would be receiving Pebble Tec brand materials, not “natural pebble tec,” and thus weighs heavily against the careful explanation Mr. Price claims to have given. This conclusion is corroborated by the fact that when the Brushes experienced cracking in their spool, their first thought was to call Pebble Tec. Had the Brushes known they were receiving a product other than the Pebble Tec brand, there would have been no reason to call Pebble Tec. Finally, according to Mr. Price, in 1999 Price Pools had built approximately 100 pools as of the hearing date. Given this sheer volume of work (roughly 1 pool every 3-3½ days), the greater likelihood is that Mr. Price – not the Brushes – misrecollected the facts. The last piece of evidence involves the Brushes’ visit to the Curtis residence. The Administrative Law Judge finds that the fact of this visit does not alter the balance of the evidence. The testimony at the hearing made clear that the purpose of this visit was to compare colors, not to inspect the surface itself. Therefore, it does not shed any light on the issue of the Brushes’ expectation that they would receive a Pebble Tec brand surface. Nor does it shed any light on the Brushes’ expectation that they would receive the Pebble Tec brand color “Tahoe Blue.” The Administrative Law Judge finds that the most reasonable inference to be drawn from the evidence on this point is that although the Brushes were shown a “Shadow Blue” pool, they believed they were viewing a “Tahoe Blue” pool and that the difference was not adequately explained to them. Therefore, they may have selected this particular pool’s color, but did so in the belief it was the Pebble Tec brand color. The Administrative Law Judge finds that the Brushes sustained their burden to prove that Price Pools departed from the plans and specifications for the construction of their spool. However, this does not end the inquiry. In order to be subject to discipline, Price Pools must have violated one or more provisions of Arizona law as charged by the ROC. In this case, the ROC charged Price Pools with violations of A.R.S. § 32- 1154(A)(2) and (A)(7). Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans and specifications . . . in any material respect which is prejudicial to another. . . .” On the facts of this case, the Administrative Law Judge concludes that although Price Pools departed from the plans and specifications for the Brushes’ spool, that departure was not prejudicial to the Brushes and therefore cannot be the basis for discipline against Price Pools’ license. The Brushes’ testimony demonstrates that but for their call to Pebble Tec to inquire about the cracking, they would neither have known nor discovered that they had received a surface other than a Pebble Tec surface. Further, the Brushes presented no evidence that the “natural pebble tec” surface was inferior to the Pebble Tec brand surface which they believed they would receive. Thus, there is no evidence upon which to conclude that the Brushes’ were prejudiced by Price Pools’ installation of the “natural pebble tec” surface.[2] Because Price Pools’ departure from plans and specifications was not prejudicial to the Brushes, it also was not a wrongful act resulting in substantial injury to the Brushes as required to impose discipline under A.R.S. § 32-1154(A)(7). RECOMMENDED ORDER In view of the foregoing, it is recommended that no discipline be imposed against Price Pools’ license and that the entire Citation and Complaint issued in this matter be dismissed.

Done this day, December 21, 1999.

______________________________________ Daniel G. Martin Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] According to the Brushes, it was the cracking which initially led them to discover they had not received a Pebble Tec brand surface. After the cracking began, the Brushes called Pebble Tec to inquire about the cracks, and learned that Price Pools was not a Pebble Tec brand vendor.

[2] This conclusion should not be construed as condoning Price Pools’ conduct. Nor should this conclusion be deemed to prevent the Brushes from seeking a civil remedy against Price Pools for the difference in value, if any, between a spool containing “natural pebble tec” and a spool containing Pebble Tec brand pebble tec.

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