ALJDEC decisions subject to certification as final

06F-M1848-ROC · Registrar of Contractors · 2007-04-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2006 and March 20, 2007 APPEARANCES: Complainant: Russ R. and Michelle A. Konka appeared at both hearings, pro per. Respondent: Aaron Edward Zepeda, member and qualifying party, and Edward Zepeda, member, appeared at both hearings, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The initial hearing in this matter convened at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 9, 2006. The parties did not conclude the presentation of evidence at that time and the mater was set for further hearing pursuant to this tribunal’s Order Re: Further Hearing Date issued on December 29, 2006. 2. At all times here relevant, Complainants Russ R. Konka and Michelle A. Konka (“Complainants”) were the owners/occupants of a residence located at 21093 E. Calle De Flores, Queen Creek, Arizona (“premises/project”). 3. Respondent Desert Pathway Design and Development LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 207444, Class K-21 (Dual Landscaping and Irrigation Systems) issued by the Registrar of Contractors (“ROC”) on May 22, 2005. Aaron Edward Zepeda (“A. Zepeda”) is a member and the qualifying party for the license. A review of the licensing database maintained by the Registrar of Contractors indicates that this license was suspended June – 19, 2006 (lack of bond). 4. Complainants filed a complaint with the ROC on March 22, 2006 (“complaint 1”) wherein they alleged various problems with a patio installed and/or caused to be installed by Respondent including, without limitation, color, “uneven rough finish and edges are not all the way to the house and sloppy,” cracks, bubble holes. Complainants further stated that they “want to hire a new company to remove this mess and put the finish on correctly.” 5. Registrar of Contractors Inspector Ted Gerold (“Gerold”) conducted a Jobsite Inspection on March 31, 2006 and issued a Corrective Work Order on April 26, 2006 wherein he determined that “the patio overlay does not match the samples provided to the ROC. The samples are darker and have color highlights that the Contractor did not provide.” As a result, Inspector Gerold required Respondent to cause the patio overlay coloring to match the sample provided by the Respondent “using an appropriately licensed contractor and appropriate means.” 6. On July 13, 2006, Complainants filed a second complaint (“complaint 2”) wherein they alleged, inter alia, that “during planning stage” they asked Respondent to install “a shade tree…so it would provide shade during the winter months when the sun comes directly into the house.” Complainants further alleged that, relying on Mr. Zepeda’s recommendation as a professional landscaper, they agreed to have Respondent install a yellow orchid tree which does not serve its intended function. Complainants further alleged that Respondent’s representative “always assured [them] that if [they] were not completes satisfied with this tree, [Respondent] would replace it, both verbally and on page 3 of our Addendum.” 7. On September 1, 2006, the Registrar issued a CITATION AND COMPLAINT in Case No. M06-1848 charging Respondent with possible violations of A.R.S. §32-1154A 2, 7 and 3 (namely, R4-9-108, the workmanship rule). 8. Respondent filed an answer on September 15, 2006, wherein Respondent contends that Complainants “are misrepresenting the evidence and have made complaints that are inaccurate.” Aaron Zepeda, on behalf of Respondent, further asserted that, inter alia, he did not recommend a “yellow orchid” tree as he was not aware of the existence of this type of tree; Respondent left the decision on the type of tree to be planted to Complainants who chose a “Bauhinia” tree; the tree remains alive and well and, given such condition, is not in violation of Respondent’s warranty; Complainants have caused some of the tree’s problems by over watering, Complainants’ request for a replacement tree was submitted after the expiration of its applicable warranty period; and, Complainants are “simply trying to extort a free tree from [Respondent] by fabricating a false complaint.” 9. At the hearing, Russ R. Konka (“R. Konka”) and Michelle A. Konka (“M. Konka”) testified and submitted Exhibits A, B, D and E which were marked, admitted and considered. Exhibit C was admitted over objection. 10. Aaron Edward Zepeda (“A. Zepeda”) and Edward Zepeda (“E. Zepeda”) testified on behalf of Respondent and submitted Exhibits 1 and 2 which were marked, admitted and considered. 11. Prior to the presentation of any testimony or other evidence, the parties stipulated that the only remaining issue to be resolved by this tribunal is the tree addressed in complaint 2. 12. On the evidence and testimony of record, the following salient facts were adduced at the hearing and are important to note: a. On November 3, 2005, the parties entered into a Proposal and Contract (“Contract”) whereby Respondent was to perform certain landscape work on the premises. (Exhibit E) Subsequently, the parties executed three addenda on or about February 18 (2) and February 22, 2006 whereby Respondent was to perform additional landscape work on the project. (Exhibit E) b. The parties’ Contract specifically provided certain warranties including: “120 days on plants, trees, sod and lighting….Plants determined, by [Respondent], to be dead or dying will be replaced at 120 days upon the request of [Complainant]….The warranty on plant material applies only to plants that are on an automatic irrigation system installed by [Respondent]….The [Complainants] shall provide all necessary care and watering of plants, trees and shrubs upon completion of the contracted work. Negligence of proper care and watering by the [Complainants] shall void the warranty and [Respondent] will not be bound by the guarantee.” c. Addendum three executed on February 22, 2006, provided “orchid tree will be replaced if client is not satisfied.” d. Complainants remitted to Respondent full payment of all monies due under the Contract and addenda by February 22, 2006. e. Respondent planted an “Orchid Tree (bauhinia variegate)” on or about January 31, 2006 pursuant to plans designed by A. Zepeda. (Exhibit 1) f. Complainants subsequently contacted Respondent to complain about the absence of leaves on the tree. At this time, Complainants also contended that the tree installed by Respondent was not a “shade tree” for which they had contracted. g. R. Konka testified that the tree installed by Respondent was not a “shade tree” as promised. In addition, R. Konka asserted that the tree was improperly planted which he believes prevents it from taking proper root. h. R. Konka contends that the express language of Addendum Three obligates Respondent to replace the subject tree because Complainants are not satisfied. i. R. Konka acknowledged that Complainants placed plants at the base of the subject tree but denied they caused any over watering of the tree. j. E. Zepeda testified that it is typical for a tree or plant to be “stressed” from being transplanted but added that it would rebound with a few weeks to months. k. E. Zepeda further testified that Respondent properly prepared the site and installed the tree. l. A. Zepeda testified that he offered Complainants various alternatives for their desired “shade tree” and that Complainants ordered the subject tree after much discussion. A. Zepeda also stated that M. Konka specifically commented about her desire to have an orchid tree. A. Zepeda further stated that he did not recommend the subject orchid and that M. Konka insisted on the orchid because it was “showy and full of flowers.” m. A .Zepeda further testified that immediately after planting the subject tree suffered the normal shock from being transplanted and was short on leaves due to it being winter. n. A. Zepeda further contends that Complainants have harmed the tree by planting other vegetation at its base which has resulted in the tree being over watered. o. R. Konka testified that Complainants did not add any irrigation for the plants placed at the base of the tree since water from the yard was sufficient. p. A. Zepeda testified that he was coerced by Complainants into executing Addendum Three in order to receive the final payment under the Contract. A. Zepeda further contends that the language of Addendum Three is intended to mean Respondent will replace the tree with another orchid only if it died, not if Complainants were “not satisfied” and wanted another type of tree. q. A. Zepeda further testified that Respondent’s 120 day warranty period extends from the date the tree was planted, i.e., January 31, 2006, and therefore expired on May 31, 2006. A. Zepeda concluded that since Complainants first requested replacement of the subject tree by letter dated June 14, 2006 (Exhibit D) r. Complainants contend that A. Zepeda represented to them that they should select a replacement tree which Respondent would install in place of the orchid. (Exhibit D) s. A factual dispute exists regarding who recommended and/or selected the subject orchid tree for installation on the premises. Complainants assert they relied on Respondent’s expertise and recommendation when they selected the orchid because of its being a “shade tree.” Respondent argues it recommended several other preferable shade tree alternatives but that Complainants insisted on the orchid.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. M06-1848 charged Respondent with possible violations of A.R.S. §32- 1154A 2, 7 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or his duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

…

3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 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. 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. 43, 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 purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (2). Respondent’s Exhibit 1, the plans for the landscape work to be performed by Respondent, specifically provide for an “Orchid Tree (bauhinia variegate”) which was what was planted by Respondent. It is therefore evident that Respondent complied with the plans for the subject project. Complainants provided no other plans, specifications and/or applicable code provisions from which this tribunal could determine that Respondent failed to comply. 5. It is also determined and concluded that Complainants did not establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) by failing to install the subject orchid tree in a workmanlike manner. 6. This tribunal determines and concludes that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7), as charged in the issued Citation in Case No. M06-1848. Due to the factual dispute between the parties regarding who was responsible for choosing the subject orchid, it cannot be said that Complainants met their burden of proof on this issue. Moreover, notwithstanding the express language of Addendum Three regarding Complainants’ “satisfaction,” the evidence elicited at the hearing was insufficient to establish that Complainants notified Respondent of their dissatisfaction within the 120 day express warranty period.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. M06-1848 be dismissed.[1] Done this day, April 9, 2007.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] 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 in this matter will be forty (40) days from the date of that certification.

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