ALJDEC

01F-2603-ROC · Registrar of Contractors · 2002-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 13, 2002. APPEARANCES: COMPLAINANTS: Harvey and Elaine Lester, with Brian Dimitro. RESPONDENT: by Brent Ford, corporate officer, qualifying party, and authorized representative. REGISTRAR OF CONTRACTORS: Inspector Lee Combs.

ADMINISTRATIVE LAW JUDGE: Anthony Halas. _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. Complainants Harvey and Elaine Lester (the Lesters) are homeowners residing at 6702 East Sunnyvale Road, in Paradise Valley, Arizona. 2. Respondent The Landscaping Edge, Inc. (Landscaping Edge) is a corporation holding Arizona Contractor’s License No. 154378, Class C-21, issued by the Registrar of Contractors (Registrar) on April 24, 2000. Brent Ford (Ford) is a corporate officer, qualifying party on the license, and authorized representative in this proceeding. 3. In November, 2000, the Lesters contracted with Ford on behalf of Landscaping Edge for certain landscaping to be done at their residence. 4. On April 28, 2001, the Lesters filed a complaint with the Registrar alleging that Landscaping Edge had not completed the work contracted for, and had not made necessary repairs. Administrative notice is taken that with the complaint the Lesters included a list of eleven particular concerns. 5. In response to the complaint, the Registrar’s Inspector Leslie (Bud) Combs conducted a jobsite inspection on May 16, 2001. Based on his observations and conclusions, Inspector Combs issued a Corrective Work Order (CWO) to Respondent Landscaping Edge on May 24, 2001, directing the licensee to take appropriate corrective action on six of the eleven items complained of by the Lesters. (Administrative notice is also taken of the Corrective Work Order, which adopted the format of the eleven-item list submitted with the complaint, and directed that Respondent correct items 1, 5, 6, 7, 10, and 11; no action was required on items 2, 3, 4, 8, and 9). 6. When the matter was not resolved, the Lesters requested hearing, and on November 15, 2001, the Registrar issued a CITATION AND COMPLAINT in Case No. 01-2603 to Respondent, charging the licensee with possible violations of §§ 32-1154.A.1, 3 (and A.A.C. R4-9-108, the workmanship rule), 7, and 23. On Respondent’s timely answer that appropriate repairs had been done, the matter was set for hearing on March 13, 2002. 7. A. At hearing, Complainants Lester testified, and presented the testimony of Brian Dimitro, a licensed landscape contractor. The Lesters also offered Exhibits A through K, which were marked and admitted; Ford’s objections to several of the exhibits were deemed by the undersigned to go to the weight to be given the exhibits, and not their admissibility. B. Ford testified as Respondent’s representative and as the individual who had dealt directly with the Lesters on its behalf. C. Inspector Combs testified to state his observations and conclusions based on his initial jobsite inspection on May 16, 2001 (with Lester and Ford present), and a second pre-hearing jobsite inspection (at which he was unaccompanied) on March 2, 2002. 8. The evidence establishes that on November 17, 2000 Complainants contracted with Ford for Respondent Landscaping Edge to provide specified rock material, plants and curb edging for the price of $7500.00 (Exhibit B/2, Respondent’s “Landscaping Proposal/Contract” dated 11-17-00 (unsigned)). This contract was substantially completed by December 15, 2000, and the contract price was paid in full by Complainants. 9. On November 20, 2000, Complainants contracted with Ford for Respondent to provide sprinkler and drip irrigation systems (with ‘Raindial’ timers and ‘Hunter’ valves and heads specified) and two drains for roof runoff; screened fill dirt, mulch and gypsum, and contour mounding in the front yard; and bush and tree pruning and debris clean-up (Exhibit B/1, Respondent’s “Landscaping Proposal/Contract” dated 11-20-00 (signed by Lester on 11/20/00)). The price term was $10,325.00, which Complainants paid in full. This contract was substantially completed by December 15, 2000. 10. A. Sometime later, Ford prepared a third (undated and unsigned) “Landscaping Proposal/Contract” which proposed additional irrigation work (listing water main, gas line, electric breaker and leach bed); additional curb edging, concrete and fireplace; and lights and gas lines (Exhibit B/3). The price term proposed was $5950.00. This “fireplace” and related “BBQ” work proposed by Respondent was never done, nor was any money paid by Complainants. (See Exhibit E photograph). B. Complainants contend they accepted Respondent’s ‘fireplace/BBQ” proposal and formed a contract, and to that end, submitted a letter from Lester to Ford dated March 21, 2001 (Exhibit F), and a transcript they had prepared from a recorded telephone conversation Mr. Lester had with Ford on or about March 22, 2001 (Exhibit J). C. Respondent, through Ford, does not deny the letter or the substance of the conversation reproduced in the transcript, but contends that there was never sufficient meeting of the minds regarding the performance and price terms of the proposal to constitute a contract, consistent with his decision not to seek a deposit for that work, as was his practice, and as he had done on the two other contracts he had made with Complainants. D. Based on the information and documentation provided by the parties at the original inspection, Inspector Combs opined that the undated, unsigned, and unpaid-for fireplace/BBQ proposal (Exhibit B/3) had never resulted in a contract between the parties, and he did not change that opinion based on the testimony and evidence he considered at hearing.

11. Relative to their eleven-item list submitted with the complaint, the Lesters disagree with Inspector Combs’ Corrective Work Order directive that certain of the items on the list did not require correction, and they further disagree with both Inspector Combs and Mr. Ford that Respondent has complied with correction of those items which the CWO did require be corrected. Item by item, the positions of the parties and the Registrar’s inspector (through the time of his pre-hearing inspection on March 2, 2002) are: 12. Item 1: The grading on one side of the front of the house was not built up sufficiently and water accumulates at the stem wall. The drains installed to help this problem are not adequate. (See Exhibit C/1-3 photographs). A. The Lesters state that despite any efforts by Respondent to correct the grade at the stem wall, water still accumulates there, consistent with the November 2, 2001 report of Brian Dimitro (Exhibit H) and his testimony as to “wet algae-like” conditions. They consider the drains to be inadequate, particularly after rainfall, despite Respondent’s acknowledgment in the November 20, 2000 contract (Exhibit B/1) to provide “2 drain in front of house for roof run off.” B. Ford stated that on June 14, 2001, in response to the CWO, he had hauled in fill dirt to correct the grade across the stem wall. He also questioned to what extent work done by others subsequent to his company’s work had affected his work, stating that someone had trenched in- ground electrical conduit to the exterior wall of the house, possibly changing the grade of one of the drains he had installed. Ford also denied that the “contour mound sloping to the street” constructed per the November 20, 2000 contract (Exhibit B/1) would cause water to run to the house unless the contour of the mound had been subsequently altered. C. Inspector Combs stated that at the time of his pre-hearing inspection on March 2, 2002, the grading appeared to be higher than at his original inspection, such that the original deficiency in the slope of the grade appeared to have been addressed to meet workmanship standards. 13. Item 2: The final grading and preparation for the sod in the rear of the house was not completed after the sprinkler system was installed. This was delayed by the contractor as he told us it would be done following his completion of a patio/barbecue area…. (See Exhibits D/1- and E photographs). A. Complainants stated that their concerns relative to this item were two-fold: Ford had excessively delayed installation of the fireplace/BBQ under the contract they believed existed, which had then resulted in his company’s failure to perform final grading and preparation in the rear yard for the sod to be laid (by another company). The Lesters rely on a proposal dated February 21, 2002 by Todd Dowmen, for Sun Country Landscape, to grade out lawn areas in the back of the house and prep for lawn installation (Exhibit K). B. Ford confirmed giving Complainants a proposal for the fireplace/BBQ but he denied that the proposal had ever become a contract, due to financial issues. He also stated that the final grade had been completed in the rear yard and denied that the area required further preparation before sod could be laid. He questioned what had occurred in the six months after he left the site before Complainants attempted to have the area sodded. C. Inspector Combs explained that his original determination was that the final grade in the rear yard appeared sufficiently complete such that no further action had been required by Respondent. The inspector confirmed that extensive weeds existed in that area, and some debris, but did not attribute those to acts or omissions by Respondent. Because his access to the rear yard was restricted at the time of his unaccompanied pre- hearing inspection, he could not provide any current opinion either in accord or to the contrary. 14. Item 3: The sprinkler system in the front of the house on the east side requires correction as certain areas have insufficient water and the grass has not survived, despite repair. A. The Lesters stated that the sprinkler system watering the front east side grass is providing insufficient water for the grass, consistent with the May 17, 2001 statement by the sales representative for Brooks Turf (Exhibit A). B. Ford contends that the water provided by the sprinkler system in that area is sufficient, but that subsequent mulch and topsoil work by others had resulted in certain of the sprinkler heads in the front yard being too low. C. Based on his observation of this portion of the sprinkler system at the original jobsite inspection, Inspector Combs concluded that the water pattern appeared sufficient, despite that subsequent mulch and topsoil work by others had apparently caused some of the sprinkler heads to be low. He therefore determined that no further action had been required by Respondent. The inspector stated that nothing he had observed at the pre- hearing inspection caused him to conclude otherwise. 15. Item 4: The sprinkler system in the rear of the house has leaks. Certain heads are not positioned correctly, and many are too high. Following the original installation leaks caused the ground to collapse in areas. (See Exhibits D/1-5 and E photographs). A. The Lesters generally reiterated this allegation but did not provide probative evidence sufficient to demonstrate specific deficiencies. B. Ford contends that Complainants’ Exhibit E photograph shows the rear area at the correct grade. In support of his contention that subsequent work by others may have altered the site, he referenced the photograph at Exhibit D/3 as showing footprints in the soil not there when his crew finished. C. Inspector Combs explained that his original determination was that in testing that section of the sprinkler system, no leaks were found, and that the sprinkler heads were not too high, pending sodding of the grass by another company, such that no further action had been required by Respondent. Although his access to the rear yard was restricted at the time of his unaccompanied pre-hearing inspection, the inspector had no other information contrary to that determination. 16. Item 5: The drip system is not installed correctly, and has leaks which have caused flooding. The drip tubing is not marked as required. A. The Lesters generally reiterated this allegation but did not provide probative evidence sufficient to demonstrate specific deficiencies. B. Ford stated that he had determined this problem (and the flooding of valve boxes (Item 10)) to be the result of excessive drip system watering times of 40 minutes per day, which caused saturation of the ground and flooding. He stated he had reduced the time significantly, only to find out, in response to the Corrective Work Order, that someone had later again increased it to 40 minutes per day. C. Inspector Combs noted that at the original jobsite inspection this front planter box area had been soggy and spongy due to excess moisture, but that at the time of his pre-hearing inspection, the area was acceptably moist rather than wet, such that the original deficiency appeared to have been corrected. 17. Item 6: Debris remains in the rear of the house. A. Complainants stated that Respondent’s work had left extensive debris in the rear yard area, which required removal before the yard could be sodded with grass by another company (See Exhibit A). They denied that any debris had been left by any others subsequent to Respondent’s work. B. Ford stated that he had removed two small piles of debris from the rear of the house as directed by the Registrar’s inspector. He denied responsibility for other debris, attributing it to work done by others. C. Inspector Combs stated that the original debris in the rear yard which he had determined required correction had been a small pile west of the mesquite tree, which had been cleared by the time of his pre-hearing inspection. The inspector stated that he had not been provided sufficient information to determine that any other debris in the rear area was attributable to Respondent’s actions, rather than to actions by others. 18. Item 7: Two cool deck pads that the contractor acknowledged they had chipped have not been repaired, despite their promise to do so. A. Although not corrected by Respondent, Complainants had the original kool deck installer repair these two chipped areas when the installer was doing other work onsite. Ford confirmed that he had agreed he would reimburse Complainants their expense for these repairs, although they had not yet requested he do so. Absent such a request, the evidence and testimony confirms that this item has been resolved and is no longer at issue. 19. Item 8: Annuals at the pool have not had adequate irrigation installed. A. The Lesters stated that this item was resolved and no longer at issue. B. Ford stated that he had not responded to this complaint item because the Registrar’s Corrective Work Order had not required that he do so, and that in any event, the watering system had been appropriately installed to water pygmy palms. C. Inspector Combs stated that in his original inspection he had concluded that the irrigation of the plantar near the pool was adequate, such that no further action had been required by Respondent. His limited pre-hearing inspection of the rear yard area did not result in any change in his original conclusion. 20. Item 9: The pruning of all trees and shrubs has not been completed or done inadequately. A. The Lesters stated that this item was resolved and no longer at issue. B. Ford stated that all tree and shrub pruning had been done but for one Joshua tree, which he stated he had advised Complainants he was incapable of doing. C. Based on his original inspection, Inspector Combs had determined that the pruning appeared complete, such that no further action had been required by Respondent. His pre-hearing inspection did not result in any change in that original determination. 21. Item 10: The valves are filling with water. They are either leaking or improperly placed. We were given no indication as to their function ie : fruit trees etc. (See Exhibit C/1-3 photographs). A. The Lesters stated, consistent with the November 2, 2001 report by Dimitro (Exhibit H), that water still pooled in the valve boxes. With regard to the lack of any indication by Respondent as to the function of these valves, the Lesters generally reiterated this allegation but did not provide probative evidence sufficient to demonstrate specific deficiencies. B. Ford stated that he had determined this problem (and drip system leaks (Item 5)) to be the result of excessive drip system watering times of 40 minutes per day, which caused saturation of the ground and flooding of the valve boxes. He stated he had reduced the time significantly, only to find out, in response to the Corrective Work Order, that someone had later again increased the watering cycle to 40 minutes per day. C. Inspector Combs noted that at the time of his pre-hearing inspection, the valve boxes were normally moist inside, rather than flooded as before, such that the prior deficiency allowing them to fill with water appeared to have been addressed (perhaps by adjusting the valve timers), and no further action was required. 22. Item 11: The rain dial timer was not set up correctly in order to adequately separate the systems. The functioning was not explained, nor was the battery back up installed. A. The evidence and testimony confirms that this item has been resolved and is no longer at issue. 23. In addition to their testimony about the specific items complained of, Complainants sought at hearing to amend the original complaint by offering more generalized testimony (of their own and by Brian Dimitro) and documentary evidence to assert that Respondent’s overall design of the sprinkler and drip irrigation system was inadequate to evenly distribute water. A. To that end, Dimitro, a licensed landscaping and irrigation contractor, completed an analysis of their sprinkler and irrigation system and authored a proposal report dated November 2, 2002 (Exhibit H). In his testimony, he confirmed that he had not reviewed the specific complaint list by the Lesters, or the Corrective Work Order issued by Inspector Combs, and was not aware of what work might have done by others subsequent to Respondent’s work. He confirmed that he had not been on site since completing his report. Consistent with his report, Dimitro explained why he had concluded that certain aspects of Respondent’s design were not adequate (even if properly installed) to provide adequate pressure to evenly distribute water through the sprinkling and drip irrigation systems. B. Dwight Haggarton, a sales representative for Brooks Turf, authored a statement dated May 17, 2001 (but did not testify). The statement indicated that after the company installed grass sod in the front yard, the eastern-most irrigation zone did not provide adequate water coverage and should have more sprinkler heads, and that the back yard was not ready for sod due to construction debris, weeds and sunken irrigation trenches (Exhibit A). C. Randy Balderrama, president of Botanical Group, a licensed landscaping and irrigation contractor, authored a report dated October 13, 2001 (but did not testify). The report commented on design and function of the irrigation system, and addressed design issues of lack of pressure, pipe sizing, valve brands and size, as well as drainage toward the foundation at the front of the house north of the driveway lawn area (Exhibit I). 24. Ford testified for Respondent to state that he had returned to the jobsite after the Corrective Work Order and addressed those items the CWO directed him to. He contended that the several statements and reports by the other landscape companies simply reflected their various opinions, and were not consistent with each other, particularly the conclusions reached by Dimitro in his testimony and proposal report (Exhibit H) when compared to those by Balderrama for Botanical Group (Exhibit I). Ford contends that the statements and reports did not respond to the specific corrective work required by the Registrar’s Corrective Work Order and raised issues regarding design which were not part of the original complaint. 25. Ford stated that although the November 20, 2000 contract (Exhibit B/1) specified Hunter heads and valves (at Mr. Lester’s request), the Rainbird heads and valves he had used were of better quality and more expensive. 26. After considering the testimony of Complainants Lester and Mr. Dimitro, and considering the additional reports/proposals submitted by the Lesters (Exhibits A, H, I, and K), Inspector Combs testified to explain that his original and pre-hearing inspections had focused on the specifics of the original eleven-item complaint. 27. The inspector concluded that the scope of the original complaint had specified particular deficiencies rather than an overall inadequate design of the irrigation system, and had not been amended at any time prior to hearing to include the broader scope of Complainants’ current concerns and evidence alleging such design flaws. 28. For that reason, Inspector Combs concluded that his lack of opportunity to consider and inspect alleged design flaws at any time prior to hearing, and direct Respondent to correct, as necessary, any such design flaws, prevented him from any present determination whether Respondent should be required to correct such alleged flaws relative to this complaint. 29. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. 30. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent, albeit of short duration, given the recent issuance of its license. Thus, Respondent’s record is viewed as a matter to be considered in mitigation of any disciplinary penalties to be imposed as a direct result of the violation proven. // // //

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154.A.1, 3 (and A.A.C. R4-9-108, the workmanship rule), 7, and 23. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. … 3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take 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 written directive from the Registrar.

A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors 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. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 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. On the record made in this matter, there is no doubt in the mind of the undersigned that Complainants Lester have grown significantly frustrated in and by their dealings with Ford for Respondent Landscaping Edge, which frustration over time has caused them to now question the essential design of the irrigation system installed by Respondent. 4. However, the nature and extent of this disciplinary proceeding against Respondent’s license is constrained by the scope of the Citation issued by the Registrar of Contractors and the allegations of the Complaint upon which the Citation was based. 5. In this instance, Complainants have attempted at hearing to broaden the scope of the proceeding beyond the eleven items specified in the original complaint to more generally include flaws alleged in the design of the entire irrigation system. The undersigned concludes that such broadened scope is beyond the authority of this tribunal to consider relative to this CITATION AND COMPLAINT, in light of the specific terms of the Registrar’s Corrective Work Order directive to Respondent based on that complaint. This is so, even if the deficiencies alleged in this complaint are determined in some future proceeding to be only symptoms of some essential design flaw. Therefore, the conclusions of the undersigned are limited to the testimony and evidence relevant and probative to the original CITATION AND COMPLAINT. 6. The undersigned concludes that Complainants have failed to demonstrate, by a preponderance of the evidence, an enforceable contract relative to Respondent’s proposal to build the fireplace/BBQ. (Complainants may have equitable remedies in other forums for Respondent’s failure to more promptly and definitively reject their overtures in forming such a contract subsequent to its proposal, but such remedies are beyond the jurisdiction of the Registrar of Contractors.) For that reason, a violation of A.R.S. § 32-1154.A.1 has not been proven. 7. The evidence does demonstrate that Respondent failed to meet certain minimum workmanship standards required by the Registrar, as determined by the Registrar’s inspector in the Corrective Work Order issued on May 24, 2001, so a violation of A.R.S. § 32-1154.A.3 and the workmanship rule, A.A.C. R4-9-108, has been proven. 8. However, the evidence further demonstrates that Respondent has taken sufficient appropriate corrective action with regard to these workmanship deficiencies to comply with the Corrective Work Order directive by the Registrar. For that reason, a violation of A.R.S. § 32-1154.A.23 has not been proven. 9. Finally, the evidence demonstrates that the November 20, 2000 contract (Exhibit B/1) required that ‘Hunter valves’ and ‘Hunter heads’ be installed in the irrigation system, but that another brand (Rainbird) was used, in whole or part. Despite Respondent’s contention that Rainbird is of superior quality (and more expensive) this substitution was contrary to the desire of Complainants and without their permission, and contrary to the express terms of the contract. As such, this is deemed to be a wrongful act, and a violation of A.R.S. § 32-1154.A.7 has therefore been demonstrated. 10. Relative to that conclusion, it is noted that the Registrar of Contractors cannot order a trespass to provide a contractor access to perform required work, but there is no reason evident in this record to depart from the long-standing policy of the Registrar to allow a licensed contractor a reasonable opportunity, after a hearing, to complete and correct any determined deficiency in performance on the contract. 11. For that reason, it is necessary that both parties seek in good faith the scheduling of reasonable and timely access for Respondent to comply with the contract by installing Hunter valves and heads, prior to the imposition of any disciplinary penalties by the Registrar. Should there be an unreasonable refusal to allow the work to go forward by means and methods of the contractor’s choice reasonably directed to meet the terms of the contract, then such refusal may be deemed tantamount to Respondent’s compliance with the necessary corrective action.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter, the Class C-21 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate action to comply with Conclusions of Law 9, 10, and 11. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the required work on or before the effective date of the Registrar’s Order, or is unreasonably denied access for such purpose, the above license suspension shall not take place. Done this day, April 2, 2002.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826