ALJDEC

99F-T0417-ROC · Registrar of Contractors · 1999-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|JACOB STERN, |§|CASE NO.: t99-0417 | | |§| | |Complainant, |§|DOCKET NO.: 99f-t0417-roc | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 059651, Class B-05 of|§|DECISION AND ORDER | |FIBER INDUSTRIES INC. (CORP), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: June 9, 1999, at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its qualifying party, Richard Neasham. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on June 9, 1999. The Complainant appeared on his own behalf and the Respondent appeared through its qualifying party, Richard Neasham. 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. Respondent is the holder of a Class B-05 License issued by the Registrar of Contractors.

2. This is a residential matter where the Respondent installed a new fiberglass shell in the Complainant’s existing concrete swimming pool.

3. Credible evidence, presented at hearing, established that the existing concrete swimming pool structure was in poor condition with cracks in it.

4. Credible evidence established that the Respondent accepted the existing concrete structure as being adequate for the installation of the new fiberglass shell and installed the material.

5. Several months after the completion of the new fiberglass shell, the Complainant noted that there was flaking in the step area and that there were small spaces developing between the fiberglass shall and the concrete structure.

6. The Complainant then demanded that the Respondent correct the fiberglass shell. The Respondent asserted that there was nothing wrong with its work and declined to perform the requested correction.

7. The parties’ personal relationship deteriorated rapidly and both sides demonstrated extreme difficulty in communicating at the job-site.

8. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

9. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence.

10. Credible evidence, produced at hearing, established that the assigned agency inspector conducted his on-site inspection in a fair and impartial manner and that he utilized his best personal judgment in issuing the corrective work order for this matter.

11. The Respondent strongly objected to the corrective work order and objected to the assigned inspector’s qualifications, ability, and fairness and requested a formal hearing.

12. A licensed contractor has the ability, and right, to disagree with an inspector’s opinion and corrective work order by requesting a formal hearing.

13. There was no credible evidence of any inappropriate conduct by the assigned agency inspector.

14. Credible evidence established that although the Respondent strongly disagreed with the contents of the written corrective work order the Respondent did attempt to comply with the terms of the corrective work order.

15. Credible evidence established that on or about January 12, 1999, the Respondent’s work crew began corrective work on the fiberglass swimming pool shell. The Respondent removed the buckled areas and was prepared to properly correct the affected areas and to correct the flaking areas by the swimming pool steps.

16. Credible evidence, presented at hearing, established that the Complainant stopped the Respondent from completing the corrections on the fiberglass swimming pool shell and denied the Respondent access to complete the directed repairs on January 12, 1999.

17. The Complainant’s actions in stopping the Respondent from completing the repairs on the fiberglass swimming pool shell and in denying the Respondent access to complete the fiberglass repairs on January 12, 1999, are found to constitute an unreasonable denial of access.

18. Credible evidence established that the Respondent was denied an opportunity to comply with the terms of the corrective work order and remedy the problems with the fiber glass pool shell.

19. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The spirit and intent of the contracting laws contemplate that violations are predicated upon a failure to make corrections within a reasonable time after notice. The Complainant’s actions in unreasonably denying access to the Respondent to complete the designated corrective actions to the Complainant’s swimming pool shell effectively precludes the finding of any violations of the charged provisions of A.R.S. §32-1154(A).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Citation No. T99- 0417, together with the complaint upon which it is based, be closed.

Dated this 1st day of July, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of June, 1999 to:

Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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