An Open Letter to the California Contractor’s State License Board

In this open letter to the California Contractor’s State License Board, Scott Cohen argues that the state should adopt mandatory continuing education for pool contractor licensing and license renewals. It’s a change he believes would ultimately protect contractors and consumers by reducing the number of construction defects.

By Scott Cohen

I’m writing this open letter to the California Contractors State License Board with a plea.

As an organization dedicated to elevating the professionalism of contractors of all types and protecting consumer interests, I believe it is time for the CSLB to make a major change that will dramatically help swimming pool contractors and their clients.

Specifically, the time has come for California to require continuing education as a condition of obtaining and renewing C53 contractor licenses.

In other words, ongoing learning should be mandatory.

I say this in my role as Chairman of the California Pool and Spa Association; I say it as a licensed landscape, pool and general contractor with 25 years of experience; and, I say it as a construction- defect expert witness having more than two decades experience. Working in all of these roles, I have come to believe that education is indispensable and should be compulsory.

As an expert witness, I am hired to inspect projects when homeowners file complaints about their contractors. In this capacity, it is my job to determine whether the work was performed to industry standards, or if some form of remediation is required because it wasn’t.

Through this process, I’ve come to recognize that when a lawsuit is officially filed in a court of law, contractors often come out on the losing end. Most filed cases settle out of court and don’t end up in an actual trial; but, not before years of legal disputes, lawyers’ fees, expert fees, discovery paperwork, depositions, etc. 

Even if the contractor prevails in terms of a verdict — and usually they don’t — the cost of defending a lawsuit, the time it takes, the stress involved, and the damage to your reputation and, indeed, your psychological well-being, are all costs that cannot be recouped. Insurance companies may agree to defend you, but most policies don’t cover legal fees; so, if you make it all the way to a trial, the contractor may have to pony up for all the legal fees. And when contractors are found liable for damages, the amounts can be devastating. 

This cycle of failure and consequence has a corrosive effect on the entire industry and its consumers. When I first received my contractor’s license 30 years ago, I felt a sense of pride. I was a contractor and it meant something positive; it was an accomplishment. Now when people ask what I do, I’m embarrassed to say the word contractor. It no longer means what it used to. Nowadays, the word contractor evokes thoughts of abandonment, shoddy work, incomplete projects, and undelivered promises.

I believe the solution to both the deteriorating image of pool contractors and the litigious nature of the industry is the same. It all boils down to education and professional competency. To further make that case, let’s consider some legalese that impacts California contractors.

Fact is, the CSLB doesn’t hear about very many complaints against pool contractors, but that’s not because there’s a shortage of construction defect cases, quite the opposite. Most of the plaintiffs and their attorneys opt for legal action, rather than utilizing the system of remedies afforded by the CSLB.

Why is that?

In California, we have two specific statues that apply only to C-53 Pool Contractors that drive this decision. It is because of statutes 7167 and 7168 from the California Business and Professional Code that lawyers prefer to file a lawsuit instead of encouraging their clients to issue a complaint with the CSLB. These two statues single out pool contracts and treat pool contractors differently than all other contractor classifications. It is my position that this is fundamentally unfair and, indeed, unjust.

Pool contractors, pay attention; If you aren’t familiar with these two statutes, you ought to be. Here’s are short summaries of the code language:

7167 says that contracts for the construction of a swimming pool will be void if your contract is missing any of the home-improvement requirements. It may be considered “void and unenforceable by the contractor.”   

7168 mandates attorney compensation. It says, “In any action between a person contracting for construction of a swimming pool and a swimming pool contractor arising out of a contract for swimming pool construction, the court shall award reasonable attorney’s fees to the prevailing party.” 

This means that regardless of what your contract states, the lawyer that sues the contractor will collect all of their fees if they can prevail on even a minor claim about the construction of the project. Because lawyers are entitled to their fees, they will often discourage filing with the CSLB board and will instead take the case on a contingency basis, knowing that insurance companies will not want a trial and will eventually settle.

An important aside: nearly all settlement agreements include a “confidentiality clause” so that the CSLB never hears about it. As a result, the problem contractor continues on his path unhindered by the enforcement policies of the CSLB. The next homeowner unknowingly enters into a contract with a potentially unscrupulous character that has a clean record on the CSLB website.

If California statutes are going to treat swimming pool contractors differently than all other contractor classifications, then, as pool builders, we should also have the added requirement of continuing education to help us combat the ignorance that ultimately results in lawsuits.

While I do believe those statutes should be changed so that pool contractors are no longer singled out with these biased rules, I understand that CSLB only enforces the laws that are written by state legislatures.

The bottom line, and the main reason for this plea, is that regardless of applicable statutes, reducing the number of construction defect cases serves everyone’s best interest. By far, the straightest path toward reducing the number of construction-defect cases is education.

It’s basic commonsense. When you know what you’re doing on a jobsite, and what is and is not the established standard of care, you are far less likely to make costly mistakes that ultimately result in legal action. It’s as simple as that.

When you look at the issue in specific terms, the education mandate becomes even more compelling. Consider pool safety, as an example. Safety takes priority, we know this. Our pools are not just structures, but can be dangerous when safety protocols are ignored or unknown. Understanding water-chemistry basics, for example, could save a life, as could preventing diving incidents, slip and falls, and injuries during construction.

Nearly all the current entrapment safety laws have been updated in the last 15 years. None of them were on my contractor’s test when I took it 30 years ago. In effect, contractors are not required to be up to date on safety requirements. I submit that needs to change to protect both consumers and contractors because those risks all can be mostly avoided with a recently trained, educated, and attentive eye.

This is just one example of an area where educational requirements can be used to mitigate risk. The same type of disconnect exists in virtually all aspects of contracting, from soils engineering to applying finish materials, and every phase and discipline between.  

Sure, the CSLB does a super job of updating its tests, reaching out to industry professionals to review the test making sure it’s current and relevant. But what about the people that took the test decades ago? Why should they bother to stay up to date? Even when someone is a stellar student and knows everything needed when they take the license exams, memories fade over time and even relevant information they knew 30 years prior might be hard to recall today. The only way to prevent that is by requiring continuing education. 

In my work as an expert witness, the problems I inspect are rarely new issues. They are often the same mistakes seen over and over. Issues like buried weep screeds, improper waterproofing, or inadequate isolation joints between structures. These should be long failures of the past, but they continue to be problems. Educating contractors through continuing education requirements could help reduce those costly repairs and improve homeowners’ overall satisfaction with contractors in general. 

Fact is, education in our Industry is easy to find. There are terrific classes and programs available through the industry from organizations such as the Pool and Hot Tub Alliance, Genesis, and Watershape University. The necessary programs exist. Making education compulsory therefore requires only the will to do so. Yes, education is abundant, affordable, and available, but it is not required. As it now stands, you can renew your license next cycle if the only reading you did for the past 10 years was the Sunday comics.

Earning your contractor’s license is a feather in the cap for sure, but it doesn’t mean you know anything about running your own business. When a contractor goes out of business it hurts the reputation of the entire industry. When one contractor fails, it makes the next sale even harder.  Contracting firms go out of business for a multitude of reasons, but often it is due to mismanagement, underpricing your product, employee HR problems, or just bad bookkeeping. 

All of these issues could be reduced by requiring continued education and including business management and estimating courses in the program offering.

This proposal is not without precedent: other states have successfully implemented continuing education requirements for contractors, resulting in positive industry-wide improvements. On the east coast there’s a comradery among pool contractors that we just don’t see on the west coast. Contractors spend time together attending educational programs in pools, sales, marketing, estimating, and business management. In these courses they end up networking and sharing best of/ worst of practices that help the industry get better. 

By adopting a similar approach, California can lead by example, elevating the standards and reputation of swimming pool contractors through education and professional development.

How can we get better as an industry without ongoing education? The answer is we can’t. That is ultimately why it is time for the California Contractors State License Board to step up and require continuing education units earned from accredited sources as a requirement for licensing.

Until that happens, the industry and its consumers will be forced to contend with inferior work and its costly consequences.

Sincerely,

Scott Cohen

Scott Cohen is a nationally respected expert witness in pool-construction defect cases. He currently serves as the chairman of the California Pool and Spa Association. Cohen is a “garden artisan” and president of Green Scene Landscaping & Pools, a watershape design and construction firm based in Chatsworth, CA. A widely published author and popular speaker, Cohen is known for his gardens that combine outdoor living with inspired artistic details.