ALJDEC decisions subject to certification as final

2020A-01516-CHC-ROC · Registrar of Contractors · 2020-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

RoseZetta Bernette Cummings

COMPLAINANT

v.

Ultimate Custom Ltd LLC

dba Ultimate Services,

License No. 228261,

RESPONDENT

No. 2020A-01516-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 25, 2020

APPEARANCES: Homeowner RoseZetta Bernette Cummings and co-homeowner Ashley Kennedy appeared, representing themselves. Attorney Guy Bluff represented Respondent Ultimate Custom Ltd LLC dba Ultimate Services and its Qualifying Party, Richard Brown.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

1. Ultimate Custom Ltd LLC (Respondent) is the holder of License No. License No. 228261, General Dual KB-1 Dual Building, issued by the Arizona Registrar of Contractors (Registrar).

2. On June 23, 2019, Complainant contracted with Respondent for construction of an RV Garage, Cover and BBQ. The new construction abutted the existing garage and residence. Some existing driveway concrete was removed so that a new engineered concrete pad could be poured to support the new RV garage.

3. On March 26, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project and indicating non-completion of fifty (50) items.

4. On April 15, 2020, Investigator Clifford Corlett (Investigator) conducted a jobsite inspection.

5. On May 4, 2020, Investigator issued a written directive, regarding poor workmanship as to 21 items, and directing Respondent to address those items prior to June 5, 2020.

6. On June 4, 2020, Respondent reasonably requested additional time to complete the corrective work due to a necessary pump item having arrived in a defective condition. While Investigator was willing to allow the extension in order to have the matter taken care of, Complainant was unwilling to allow a time extension. Complainant provided a list of 6 items she believed were not properly corrected.

7. On June 16, 2020, Investigator conducted a compliance inspection and found that 4 of the 6 remaining items remained uncorrected and, thus, determined that Respondent was not in compliance with the Directive as to Items # #8, #9, #18, and #24 remained uncorrected. Following the compliance inspection, Investigator forwarded the matter to the Registrar’s legal area for issuance of a citation.

8. On June 22, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

9. On July 3, 2020, Respondent submitted a Written Answer to Citation and Complaint. Respondent indicated that the items found to be non-compliant were either new complained-of items or were work that was not a part of the contract. Additionally, Respondent noted that it had timely completed all of the Directive items with the exception of the one item [Item #24] for which the defective pump had to be reordered.

10. The parties were not able to resolve the matter between themselves prior to the administrative hearing.

11. At the hearing, the Registrar-provided documents and the parties’ proposed exhibits were admitted to the hearing record.

12. Item #8. An RV electrical plug had been installed per the Directive. However, at the compliance inspection, Investigator determined poor workmanship because pencil marks remained on the wall. At hearing, Respondent indicated that this oversight had not been pointed out to him and that it could be fixed very quickly.

13. Item #9. An installed recessed electrical box/panel did not have a cover/door. At the jobsite inspection, Investigator directed that Respondent install a door. At the compliance inspection, Investigator observed that the installed wood frame around the cabinet and its door was “notched” to accommodate an adjacent outlet. Investigator determined the door frame had not needed to be as wide as it was so that a “notch” in the frame had to be created. At hearing, Investigator agreed that no workmanship standard had been violated, but that the work was aesthetically poor. At hearing, Respondent indicated that a tradesman/subcontractor had installed the door, which was heavy and needed a larger-than-normal frame on which to be hung; he indicated that the door could be opened without impinging on a cord plugged into the outlet. At hearing, Complainant indicated that a person accessing the panel had to unplug any cords to open the door (implying, to open the door fully flat against the wall).

14. Item #18. While the hose bibs called for in the plans had been installed per the Directive, the piping was installed in such a way that the piping was exposed. At the compliance inspection, Investigator determined poor workmanship, not “in accordance with professional industry standards” because the piping was unnecessarily exposed to damage. At hearing, Investigator agreed that there were no code violations as to the installation/piping but further noted that the Registrar’s inspections look for good workmanship, which can be subjective at times, and were not the same as city/county jurisdiction inspections, which must ensure work meets jurisdiction codes. At hearing, Respondent argued that the piping had not been part of the Directive and that the installation/piping was in conformity with Mohave County codes. At hearing, Complainant indicated that Respondent had drilled into the Casita to access water lines for the hose bibs and pipes, and she argued that the exposed piping installation was hazardous and could be damaged.

15. Item #24. Rain water would pond in between the back of the new RV garage and the existing Casita. At the jobsite inspection, Investigator had directed Respondent to resolve the drainage issue because workmanship standards required that water drain away from a structure. The drainage solution involved cutting a path in the concrete around the garage, to be trenched, into which a piping system would drain water from the area. At the compliance inspection, it was again noted that the requisite pump for the drainage system had arrived defective and needed to be reordered (as no pumps were readily available); therefore, the Investigator determined the corrective work was incomplete. At hearing, Respondent indicated that everything [i.e., trenching, piping, pump installation, and concrete to be poured] had been coordinated to take place on June 3, 2020 but it all had to be delayed because the pump that had arrived was defective; Respondent indicated that this work could have been done in one day once they had obtained a replacement for the defective pump and coordinated the work. At hearing, Complainant indicated that the drainage system is not completed and the pictures demonstrate the open areas.

16. Overall, Complainant essentially argued that Respondent had not given her her money’s worth because this was a $62,000.00 contract, the contract was executed over a year ago, the workmanship was poor, and Respondent had still wanted more time to complete the work and the corrective work. Complainant indicated that she just wanted to have the work done and that Respondent should lose his license because he did not complete the contract in a timely manner which left her family in a lurch. .

17. At hearing, Respondent argued that the water ponding issue was not the result of the RV garage construction but was an existing ponding issue related to rain runoff from the Casita roof downspout, which roof and runoff were outside the scope of the parties’ contract. Respondent objected to having been directed to correct the water ponding problem; however, Respondent indicated that it did want to comply with the Directive and that the defective pump and Complainant’s refusal to allow additional time had been the only impediments to completing that corrective work. Respondent argued that, given the circumstances, there was a denial of reasonable access by Complainant to complete the work. Respondent further indicated that Complainant has not yet paid the full contract price. Respondent argued that suspension or revocation is not warranted over pencil marks, that the Complaint should be dismissed, or that it should be allowed to finish the corrective work.

18. The hearing record demonstrated difficulty in scheduling as Complainant would be away from the home (out-of-town), believed that the contract called for work only on Monday through Friday, and she wanted guarantees of the times (“plus or minus one hour”) the workers would be there; there was an increasingly poor working relationship as the project progressed.

19. Administrative notice is taken of Respondent’s License record on September 14, 2020. The Registrar’s License record reflects one prior discipline (in 2018) against the license, which was suspension for one day and a small penalty. Respondent’s record is considered as one factor regarding mitigation of any recommended penalty.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

The Registrar requires that if a contractor performs contracting work, it must perform the work to comply with the Registrar’s workmanship standards, as required by A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(3).

Although Complainant’s alleged failure to pay Respondent the full contract amount is not relevant to a workmanship complaint, if Complainant later makes a claim to the Registrar’s Residential Contractors’ Recovery Fund under A.R.S. § 32-1132(A) to recover damages caused by Respondent’s poor workmanship, the Registrar will deduct any amount that Complainant owes under the contract from any damages that Complainant might otherwise be entitled to recover.

The hearing record established that Respondent did not complete the Directive items by the Directive deadline and, as determined by Investigator, did not complete the Directive items in compliance with Registrar’s workmanship standards. Difficulty in scheduling is not a denial of access. However, based on the foregoing, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Additionally, Complainant established cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final order in this matter, as a result of Complainant RoseZetta Bernette Cummings’s Complaint in Case No. 2020-01516, Respondent Ultimate Custom Ltd. LLC dba Ultimate Services’ License No. 228261 shall be suspended for one business day.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, September 14, 2020.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors