ALJDEC decisions subject to certification as final

2012A-5587-ROC · Registrar of Contractors · 2013-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2013, at 8:15 a.m. APPEARANCES: Robert Kitley and Evangeline Kitley (hereinafter “Complainants”) were represented by Evangeline Kitley. Cummings Contractors LLC (hereinafter “Cummings” or “Respondent”) was represented by its Qualifying Party and member, Wayne Christopher Cummings. ADMINISTRATIVE LAW JUDGE: M. Douglas ________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Cummings is the holder of License No. K-9.231495-D issued by the Registrar of Contractors. This is a residential matter where Complainants entered into a written agreement with Cummings for the remodeling of Complainants’ existing swimming pool. The remodeling work was to include the removal and replacement of the existing swimming pool plaster, the removal and replacement of the existing swimming pool tile, and the partial removal and replacement of swimming pool decking. Complainants were dissatisfied with Cummings’ poor workmanship and requested that it repair their swimming pool plaster and tile. Cummings failed to comply with Complainants’ repeated requests for corrective work on their swimming pool. Complainants then filed a formal Complaint against Cummings with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Cliff Corlett (hereinafter “Inspector Corlett”), conducted an onsite inspection. Inspector Corlett issued a written Corrective Work Order on December 6, 2012, directing Cummings to perform designated corrective work on Complainants’ residence. The Corrective Work Order provided, in pertinent part, as follows:

The Respondent currently hold[s] a valid K-9 Dual Residential/Commercial Concrete contractor [‘s] license. All of the work performed under this contract (except the R&R of the concrete pool deck [)] is outside the scope of this contracting license.

COMPLAINT ALLEGATIONS: 1. Pool plaster is rough, not smooth. 2. Top of first step & love seat different color. 3. Pool color unacceptable, blotchy, streaks, etc.

Registrar of Contractors Ruling:

The ROC agrees with all of the Complainants (C) poor workmanship allegations.

Pool plaster finish is unacceptable for roughness and appearance, none of which appear to be attributable to water chemistry after the pool was filled. Respondent should correct the rough and discolored plaster by appropriate methods. ALL WORK TO BE PERFORMED BY PROPERLY LICENSED CONTRACTORS.

Testimony of Inspector Corlett Inspector Corlett testified that Cummings holds a valid License No. K- 9.231495-D. Inspector Corlett stated that a K-9 License is a concrete license that allows the holder of the license to perform concrete work, including the installation and repair of concrete, concrete products, and concrete accessories common in the industry. Inspector Corlett testified that the removal and replacement of swimming pool plaster and the removal and replacement of swimming pool tile was beyond the scope of Cummings’ License No. K-9.231495-D. Inspector Corlett testified that during his December 6, 2012 onsite inspection, he observed that the blue swimming pool plaster in Complainants’ swimming pool was unacceptably rough and that the color of the swimming pool plaster was washed–out, blotchy, and streaky throughout the swimming pool. Inspector Corlett opined that the swimming pool plaster required removal and replacement by a properly licensed contractor. Inspector Corlett testified that he conducted a pre-hearing inspection on August 21, 2013. Inspector Corlett stated that he observed that no corrective work had been performed on Complainants’ swimming pool. Inspector Corlett stated the streaking in the swimming pool plaster had lessened over time but that the appearance of the swimming pool plaster was still unacceptable. Inspector Corlett acknowledged that a representative of Cummings may have contacted him on the telephone regarding this matter. Inspector Corlett testified that he receives hundreds of telephone calls regarding various cases and cannot remember each one. Inspector Corlett stated that he remembered speaking with Carlos Ramos at the jobsite and that he had a telephone conversation with Cummings’ representative during his first onsite inspection. Inspector Corlett’s testimony is found to be credible. Testimony of Rick Bapila Rick Bapila (hereinafter “Mr. Bapila”) testified that he is Evangeline Kitley’s son. Mr. Bapila stated that he was present at the residence while Complainants were on vacation. Mr. Bapila testified that he observed that Cummings’ employees worked on Complainants’ swimming pool “two to three hours a day.” Mr. Bapila testified that the discoloration was apparent in the swimming pool as soon as the swimming pool plaster was installed. Mr. Bapila stated that Cummings’ representative assured him that the discoloration would lessen over time. Mr. Bapila testified that Cummings’ representative informed him that if the discoloration did not lessen over time, Cummings would correct it. Mr. Bapila acknowledged that he was employed at the time and that he was not at the residence while he was working. Mr. Bapila testified that his wife was present and that she observed the hours that Cummings’ employees worked. Testimony of Carlos Ramos Carlos Ramos (hereinafter “Mr. Ramos”) testified that he was building a block wall for Complainants while Cummings was performing construction work at Complainants’ property. Mr. Ramos stated that he had thirty years experience as a swimming pool plasterer. Mr. Ramos testified that it was apparent that Cummings’ employees did not know what they were doing and that the swimming pool plastering job was not performed properly. Mr. Ramos testified that he observed the problems with the swimming pool plaster application “right-a-way.” Mr. Ramos stated that there were a lot of rough spots in the swimming pool plaster. Mr. Ramos testified that it was important to brush a new swimming pool plaster installation. Testimony of Evangeline Kitley Evangeline Kitley (hereinafter “Ms. Kitley”) testified that when Complainants contracted with Cummings to perform construction work at their residence, Cummings’ representative assured Complainants that Cummings was properly licensed to perform swimming pool plastering and tile work. Ms. Kitley stated that Cummings represented that all of the agreed-upon construction work would be completed within two weeks. Ms. Kitley testified that it took Cummings two months to complete the construction project. Ms. Kitley testified that Cummings’ owner, Wayne Christopher Cummings (hereinafter “Mr. Cummings”), would drop Cummings’ employees off at the jobsite and leave them without supervision. Ms. Kitley stated that Mr. Cummings would return in the afternoon and pick up the employees. Ms. Kitley testified that Mr. Cummings did not help his employees. Ms. Kitley testified that Mr. Cummings repeatedly assured Complainants that he was going to “make them happy.” Ms. Kitley stated that Mr. Cummings knew that Complainants would be taking their vacation during the construction project and that Mr. Cummings promised Complainants that the construction work would be completed before Complainants returned from their vacation. Ms. Kitley stated the construction project is still not satisfactorily completed. Ms. Kitley testified that the texture of the swimming pool plaster was very rough and that the swimming pool looked “terrible.” Ms. Kitley stated that every visitor to her house was shocked by the condition of the swimming pool and asked who performed the work. Ms. Kitley testified that she felt Mr. Cummings took on a construction project that he was not qualified to perform. Ms. Kitley reviewed Complainants’ exhibits. Ms. Kitley testified that the photographs taken on October 24, 2012, accurately displayed the condition of Complainants’ swimming pool on that date.[1] Ms. Kitley stated that the photographs taken on August 29, 2013, accurately represent the condition of Complainants’ swimming pool as of the date of the hearing.[2] Ms. Kitley testified that Complainants’ swimming pool is very rough and unsightly. Ms. Kitley testified that a swimming pool maintenance man performed the start-up of Complainants’ swimming pool. Ms. Kitley stated that Complainants were on vacation when the start-up for the swimming pool occurred. Ms. Kitley testified that Complainants did not brush the swimming pool plaster. Ms. Kitley stated that she “had no idea” whether anyone else brushed the swimming pool plaster. Ms. Kitley acknowledged that Complainants agreed with Cummings to have Complainants’ swimming pool maintenance company perform the start-up for the swimming pool. Testimony of Robert Kitley Robert Kitley (hereinafter “Mr. Kitley”) testified that he hired Mr. Cummings because Mr. Kitley believed that Mr. Cummings really knew what Complainants wanted. Mr. Kitley stated that the start-up of the swimming pool had nothing to do with the unacceptably rough condition of the plaster. Mr. Kitley testified that Cummings did not instruct Complainants to brush the swimming pool plaster. Mr. Kitley stated that nothing was ever said about anyone brushing the plaster in the swimming pool. Mr. Kitley testified that Complainants paid for a good job. Mr. Kitley stated that Complainants did not get the good job that they paid for. Mr. Kitley testified that Complainants were not present when the start-up for the swimming pool was performed. Mr. Kitley stated that Complainants do not personally perform the maintenance on their swimming pool. Mr. Kitley testified that he pays a maintenance company $90 a month to take care of Complainants’ swimming pool. Mr. Kitley’s testimony is found to be credible. Testimony of Wayne Christopher Cummings Mr. Cummings testified that the construction work on Complainants’ swimming pool took longer than expected because “sometimes things happen that are beyond control.” Mr. Cummings reviewed his photographs and stated that Cummings’ photographs were more accurate than Complainants’ photographs.[3] Mr. Cummings acknowledged that there was some mottling on the swimming pool plaster. Mr. Cummings testified that Complainants had agreed to have the start-up of the swimming pool performed after the new swimming pool plaster was applied. Mr. Cummings stated that when Complainants complained about the mottling on the swimming pool plaster, he agreed to repair areas of the swimming pool plaster in the fall when it was cooler. Mr. Cummings testified that Complainants agreed to delay the correction of the mottling in the swimming pool plaster until the fall. Mr. Cummings testified that Mr. Kitley contacted him sometime in September and complained about the roughness of the swimming pool plaster. Mr. Cummings stated that the roughness was caused by Complainants’ failure to properly brush the new swimming pool plaster. Mr. Cummings testified that as “a swimming pool contractor,” he cannot be responsible for Complainants’ failure to maintain their swimming pool. Mr. Cummings testified that he believed that the start-up of the swimming pool was not performed correctly. Mr. Cummings stated that the improper start-up contributed to the mottling and the roughness in the swimming pool plaster. Mr. Cummings testified that the swimming pool tile was installed in concrete. Mr. Cummings stated that the swimming pool was plaster with a mix of concrete, aggregate, and water. Mr. Cummings stated the plaster is a concrete product. Mr. Cummings testified that he believed that the application of swimming pool plaster and swimming pool tile was within the scope of Cummings’ License No. K-9.231495-D. Mr. Cummings testified that the trowel work on Complainants’ swimming pool plaster was correct. Mr. Cummings stated that improper troweling could cause black spots on the swimming pool plaster. Mr. Cummings testified that he saw no black spots on the plaster in Complainants’ swimming pool. Mr. Cummings testified that Cummings had performed construction work on twenty to thirty swimming pools. Mr. Cummings stated that no other homeowner had complained about the work performed by Cummings. Administrative notice is taken of Cummings’ prior license record as reflected on the Registrar of Contractors’ public website on September 18, 2013. Such prior license record reflects that License No. K-9.231495-D is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. The plaster in Complainants’ swimming pool is rough, blotchy, and streaked. The swimming pool plaster is unacceptable for roughness and appearance. The swimming pool plaster fails to comply with applicable workmanship and industry standards. This Tribunal concludes that Cummings violated the charged provision of A.R.S. § 32-1154(A)(3),[4] namely, A.A.C. R4-9-108.[5] 4. Pursuant to A.A.C. R4-9-103, the scope of a Class K-9 Dual Contracting License includes the scope of work permitted by the commercial L-9 Concrete and the residential C-9 Concrete licenses. 5. Pursuant to A.A.C. R4-9-103 the scope of work for a C-9 Concrete license is as follows: Installation and repair of concrete, concrete products, and accessories common to the industry. This scope includes all C-9R subclassifications. C-9R Gunite and Shotcrete C-9R Lightweight Concrete C-9R Fence Footings C-9R Pre-Cast Concrete C-9R Sawing, Coring, Epoxy Panels and Bonding C-9R Terrazzo

6. Cummings knowingly contracted to apply swimming pool plaster and swimming pool tile to Complainants’ swimming pool. The construction of swimming pools and the application of swimming pool plaster and the installation of swimming pool tile are not within the scope of Cummings’ License No. K-9.231495-D. .This Tribunal concludes that Cummings violated the charged provision of A.R.S. § 32-1154(A)(17).[6] 7. On December 6, 2012, the Registrar issued a written Corrective Work Order directing Cummings to correct the rough and discolored plaster in Complainants’ swimming pool by appropriate methods utilizing properly licensed contractors for all corrective work. No corrective work was performed on Complainants’ swimming pool. This Tribunal concludes that Cummings violated the charged provision of A.R.S. § 32-1154(A)(23).[7] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-9.231495-D of Cummings shall be suspended until the Registrar receives and accepts written proof that Cummings has caused appropriately licensed contractor(s), at Cummings’ sole expense, to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if on or before the effective date of this Order, Cummings utilizes appropriately licensed contractor(s), at Cummings’ sole expense, to fully accomplish the above-described corrective action, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Cummings pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Cummings to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Cummings’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Cummings, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification M. Douglas Done this day, September 24, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit Nos. C-1 through C-10 (10/24/12 photographs).. [2] See Exhibit Nos. C-11 through C-18 (8/29/13 photographs). [3] See Exhibit Nos. R -3 through R – 8 (Photographs taken from 6/9/12 through 6/15/12).. [4] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. under this chapter. [5] A.A.C. R4-9-108 provides, in pertinent part, as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[6] A.R.S. § 32-1154(A)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee. [7] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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