ALJDEC

99F-T0842-ROC-rem · Registrar of Contractors · 2000-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, May 18th, 2000; 9:00 a.m. APPEARANCES: The complainant, Mr. Jacob Stern, represented himself. The respondent was represented by its qualifying party, Mr. Richard Neasham. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing May 18th, 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. The respondent in this matter, Fiber Industries, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-05 license number 059651. 2. The complainant herein, Mr. Jacob Stern, is a resident of Tucson, Arizona. Complainant contracted with the respondent in July of 1997, for the latter to install a new fiberglass shell inside his existing in-ground, concrete swimming pool. 3. The existing swimming pool had been around for many years previous to complainant’s purchase of the home, and had deteriorated significantly. However, restorative work had been done to the pool before respondent arrived on the scene. Respondent accepted the existing pool as fit for the installation of the new fiberglass shell and commenced work to do that pursuant to the parties’ contract. Respondent completed his work in August of 1997. 4. In September of 1997, complainant began to notice that the fiberglass seemed to be failing. As he stated in his written complaint to the Registrar, the complainant noticed what appeared to him to be areas in the pool where the fiberglass was separating and peeling off from the sub-surface, that areas of the fiberglass were exposed (bare of coating), and that there were air bubbles appearing at places in the fiberglass. 5. Complainant first informally attempted to have the respondent correct the problems he perceived to exist in his pool. Several times complainant attempted to have the respondent fix the pool, but each time the respondent placed conditions on how that would be done, conditions to which the complainant refused to accede. 6. Complainant then went to the Registrar of Contractors with his complaint. This complaint was filed June 10th, 1999. 7. Registrar of Contractors Inspector, Mr. Richard C. Allen, was assigned to the case. He conducted a job-site inspection on July 1st, 1999. He issued a Corrective Work Order to the respondent. The Corrective Work Order was dated July 13th, 1999. It directed the respondent to make the following corrections within 15 calendar days from the date of the CWO: “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.” Inspector Allen went on to write in his CWO that in order to accomplish the corrective work “cooperation between the contractor and complainant is necessary.” As it happened, both parties failed to cooperate in an effort to make these corrections.

8. Respondent did return to the job-site within the allotted 15 days to affect the corrections it was ordered to make. However, when on site and in the process of working, the complainant observed the respondent’s efforts, and disapproved of them. He therefore refused to allow the respondent to continue to work on the pool in the manner and method in which it was. Frustrated by the complainant, the respondent left the work site. The overwhelming weight of the evidence at the hearing is that these parties are no longer able to work together in a spirit of cooperation necessary for the homeowner-contractor relationship. 9. Inspector Allen also performed a pre-hearing job-site inspection on May 9th, 2000. He testified at the hearing that the defects he had noticed on his first inspection had not been corrected. No evidence of record exists tending to show that any corrections have been performed, and it appears from the positions of both parties that they have not. 10. Inspector Allen also gave testimony on two salient points concerning the policy of the Registrar of Contractors in cases typified by these facts. First, he testified that in cases where the homeowner frustrates the effort of the contractor made within the allotted time of the CWO to make the corrections an inspector has ordered to be made, by refusing to allow the contractor to do the work, such can be viewed by the Registrar’s office as reasonable justification of the respondent’s not performing the corrective work. Second, he testified that when a Class B-05 contractor such as this respondent agrees to install a swimming pool over an existing pool, even one with the history of complainant’s, that contractor accepts the existing pool as he finds it. Thus, by undertaking the work respondent undertook, he impliedly accepted the existing structure as being adequate for the installation of his product. 11. Not only did respondent accept the surface for the application of his product, a printed flyer he gave the complainant represents that the product installed in this case has a “lifetime warranty,” “seals and fills cracks,” “fixes replaster failures,” and “fixes structural defects.” 12. Respondent, at the hearing, attempted to elicit testimony from the complainant that complainant had experienced problems in his pool that were the result not of any defect in respondent’s product or installation, but of unrelated conditions in complainant’s home or of complainant’s irrigation practices. However, the testimony elicited from the complainant was insufficient to establish what seemed to be respondent’s position on this subject. As for respondent’s own case, the only witness to testify for the respondent was the adult son of the qualifying party, Mr. Troy Neasham. He gave credible testimony of his presence on the job site when the corrective work was attempted, and of complainant’s refusal to allow respondent to perform that work. While his testimony helped establish the facts about which he testified, facts found hereinabove, he gave no testimony of any other issue in this case. No documentary evidence was offered by the respondent.

13. The defects of which complainant complained, and which were corroborated by Inspector Allen, were further corroborated by a consultant retained by the complainant who testified telephonically at the hearing, Mr. Dale R. Sweetwood. Mr. Sweetwood has many years of experience in constructing non-fiberglass swimming pools, is knowledgeable of the installation and characteristics of fiberglass swimming pools, and has professional experience in training fiberglass pool installers, and consulting on fiberglass pool installations. He inspected the complainant’s pool and testified credibly to three major and widespread areas of defects: one, some areas around the top of the pool were not properly sealed; two, there was peeling between the coating surface and the fiberglass, and three, there were some fiberglass strands showing through the coating. 14. Complainant offered to the record photographs which were admitted, and which clearly depict the defects mentioned by complainant, Inspector Allen, and Mr. Sweetwood. 15. Notice is taken of the respondent’s prior license record with the Registrar. CONCLUSIONS OF LAW

1. This hearing was held under authority of and pursuant to A.R.S. 32- 1156, and 41-1092. 2. The respondent is charged in the instant citation and complaint with possible violations of A.R.S. 32-1154.A.7., 13., 23., and 3. 3. A.R.S. 32-1154.A.23. prohibits a contractor from failing to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. In this case the written directive from the registrar was the CWO. As found, the respondent did, within the 15 days allowed, attempt to make the corrections, but was prevented from doing so by the complainant. This prevention on the part of the complainant is valid justification for the respondent’s not having performed the corrective work within the 15 days. Thus, respondent did not violate A.R.S. 32-1154.A.23. 4. A.R.S. 32-1154.A.3. prohibits a contractor from violating any rule adopted by the registrar. The citation and complaint states that in this case the rule in question is A.A.C. R4-9-108, Workmanship Standards. Those standards state, in part, that all work shall be performed in a professional and workmanlike manner. The greater weight of evidence is that respondent’s work was not performed in a workmanlike manner. Thus respondent did violate A.R.S. 32- 1154.A.3. by violating A.A.C. R4-9-108. 5. A.R.S. 32-1154.A.7. prohibits a contractor from doing any wrongful or fraudulent act as a contractor resulting in another person being substantially injured. Other than the violation in conclusion of law #4, there is no evidence of any other violation by respondent which would constitute a violation of this section. 6. A.R.S. 32-1154.A.13. prohibits a contractor from failing in any material respect to comply with the provisions of this chapter. Other than the violation in conclusion #4, there is no evidence of a violation of this section. RECOMMENDED ORDER

Wherefore, it is hereby recommended that respondent’s class B-05 license shall be temporarily suspended until the Registrar of Contractors receives proof that the respondent has caused the corrective action set forth in the Corrective Work Order (quoted at paragraph #7 of these Findings of Fact) to be accomplished by another appropriately licensed contractor. It is further recommended that if the respondent properly causes the above-described corrective action to be performed by another appropriately licensed contractor, on or before the effective date of this order, then the above-provided license suspension shall not take place and citation and complaint number T99-0842 shall be closed. Done this day, May 30th, 2000.

______________________________________ Grant Winston 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 ___________________________ -----------------------

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