ALJDEC decisions subject to certification as final

2020A-05194-CHC-ROC · Registrar of Contractors · 2021-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robin Eva Healing ,

COMPLAINANT,

Adam Christopher Mason

DBA: All Star Pool Plastering,

License No. ROC 308320,

RESPONDENT.

No. 2020A-05194-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 19, 2021

APPEARANCES: Complainant Robin Eva Healing appeared on behalf of herself. Respondent Adam Christopher Mason, DBA: All Star Pool Plastering appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. Respondent Adam Christopher Mason, DBA: All Star Pool Plastering holds License No. 308320 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about October 4, 2020, Complainant Robin Eva Healing and

Mr. Mason entered contract wherein Mr. Mason would re-plaster Ms. Healing’s pool.

3. On or about October 4, 2020, Mr. Mason started work.

4. On or about October 28, 2020, Mr. Mason stopped work.

5. On or about November 3, 2020, the Registrar received a complaint from Ms. Healing alleging poor work on the part of Mr. Mason.

6. On November 17, 2020, Registrar Investigator Cliff Corlett conducted a job-site inspection.

7. On or about November 30, 2020, the Registrar issued a Directive against Mr. Mason’s license. The November 30, 2020 Directive provided in relevant part, as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00.

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on or before December 30, 2020.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated. directed Mr. Mason to correct the paintwork on the cabinets and two drawers, the visible miter seams on the cabinet door frames, and the orange peel on a cabinet door, all by appropriate means.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - There are jackhammer grooves on beach entry.

Investigator’s Observation: No jackhammer grooves were noted at the onsite inspection. Swimming pool surface coatings are plastered by 'free hand' or applied by a 'floating' finish. In other words, the cementitious surface coating is not cast-in-place, molded, screeded or guided by template as with most cementitious products.

Each swimming pool surface coating will have some waviness or fluctuation across its finished surface.

The ROC adopted Workmanship Standards for Licensed Contractors (WSLC) states that the contractor should provide an acceptable plaster finish before substantial completion (30 days after plaster and pool is filled with water).

At the time of substantial completion, the owner should advise the contractor of any unacceptable plaster roughness, irregularities, or highlighting. The owner appears to have complied with this requirement and informed the contractor in a timely manner of plaster irregularities. That being said it did appear that there were ‘trowel lines’ on the beach entry. The Respondent did stated he was willing to acid wash the pool to improve the appearance of the plaster and do plaster polishing of complainants objectionable issues.

RESPONDENT SHOULD PROPERLY ADDRESS THE PLASTER IRREGULARITIES IN THIS RE-PLASTER PROJECT.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 2 - Bench seat and all steps are wavy.

Investigator’s Observation: Swimming pool surface coatings are plastered by 'free hand' or applied by a 'floating' finish. In other words, the cementitious surface coating is not cast-in-place, molded, screeded or guided by template as

with most cementitious products.

Each swimming pool surface coating will have some waviness or fluctuation across its finished surface.

That being said it did appear that there was excessive waviness in the edge of bench seat and the stair(s).

RESPONDENT SHOULD PROPERLY CORRECT THIS EXCESSIVE WAVINESS.

Compliance Item: 4 - The lights in pool and spa have big gaps and/or missing plaster.

Investigator’s Observation: The light in the spa does not appear to be

sitting flush with the in wall light bucket, also the plaster around the light appears to have some excessive roughness. Main pool light appeared to be an acceptable fit.

RESPONDENT SHOULD PROPERLY CORRECT SPA LIGHT FIT AND SURROUNDING ROUGH PLASTER.

..............................................

8. On December 18, 2020, Investigator Corlett conducted a job-site compliance inspection. Investigator Corlett concluded that Mr. Mason appropriately corrected complaint items 1 and 4. However, Investigator Corlett found that Mr. Mason had not appropriately corrected complaint item 2 because the edges of the bench and step were noticeably wavy.

9. On or about January 14, 2021, the Registrar issued a Citation against

Mr. Mason’s license. Through the Citation, the Registrar alleged that Mr. Mason may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-109; Ariz. Rev. Stat. section 32-1154(A)(22).

10. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of

Mr. Mason.

11. Mr. Mason filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. On or about February 17, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on March 19, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

14. A hearing was held on March 19, 2021.

15. At hearing, Ms. Healing testified on behalf of herself. Mr. Mason testified on behalf of himself and presented the testimony of Richard Mason. Investigator Corlett testified regarding his investigation of the complaint and the issuance of the Directive. 16. Ms. Healing explained that Mr. Mason performed poor work when he remodeled her home.

17. Mr. Mason testified to the effect that although his work was not perfect, his work complied with professional industry standards. Mr. Mason testified to the effect that he spent 5 to 6 hours polishing the nose. Mr. Mason stated that Investigator Corlett could not accurately assess the waviness of the bench and step because winds were blowing at 15-20 miles per hour on the day of his inspection. Richard Mason testified that he was present for Investigator Corlett’s inspection and the winds were blowing at about 18-20 miles per hour.

18. On cross-examination, Investigator Corlett explained that it was a little windy on the date of his job-site compliance inspection. However, Investigator Corlett stated that there were calm moments and he obtained an accurate reflection of

Mr. Mason’s work.

19. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 8, 2021, Mr. Mason’s license was first issued on September 2, 2016 and is active. Such prior License record also shows that there is only one open complaint against Mr. Mason. Mr. Mason’s license has never been disciplined.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

3. The preponderance of the evidence shows that Respondent’s work did not comply with the Registrar’s workmanship standards. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

4. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification. The preponderance of the evidence shows that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 308320 of Adam Christopher Mason, DBA: All Star Pool Plastering shall be suspended for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of 250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, April 8, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors