ALJDEC decisions subject to certification as final

07F-2272-ROC · Registrar of Contractors · 2008-05-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2008 APPEARANCES: Attorney Michael W. Thal appeared for, and with, Complainant Dennis Green; Attorney Roger R. Foote appeared for Respondent, along with Sean T. Alexander, Corporate Officer and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Michael G. Wales _____________________________________________________________________ 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated January 23, 2008, and subsequent Order Granting Continuance dated February 13, 2008. 2. Complainant Dennis Green (“Complainant”) owns and occupies a single family residence at 5623 E. Libby Street in Scottsdale, Arizona (the jobsite”). 3. Respondent Blooming Vista Landscape and Design, Inc. (“Respondent”) is an Arizona corporation which holds Arizona Contractor’s License No. 180993, Class C-21 (Residential Landscape and Irrigation Systems) issued by the Registrar of Contractors on December 15, 2002. Sean T. Alexander (“Mr. Alexander”) is a corporate officer and the qualifying party for the license. 4. Complainant filed a complaint against Respondent with the Registrar of Contractors on April 3, 2007, wherein he alleged numerous specific complaints in regards to the stone work performed by Respondent at the jobsite. 6. Registrar of Contractors Inspector Warren Duncan (“Duncan”) conducted a jobsite inspection on May 14, 2007. Thereafter, on May 21, 2007, Duncan issued a Corrective Work Order to Respondent which required Respondent to correct the following deficiencies by appropriate means: 1. Mortar splatter on stucco house wall, window, frames, window glass, iron fence at rear of house. Splatter on East side walk gate, on sidewalk at front of portico.

2. Mortar style/texture at BBQ area doesn’t match chimney or front of house.

3. Mortar color not acceptable, doesn’t match existing chimney or front of house.

4. New stucco walls at front gate entry, color does not match existing stucco.

5. Exposed wires at fixture/junction box. Contractor installed rough-work cover, not finished appearance.

Respondent was given fifteen (15) days to comply with the Corrective Work Order.

7. On June 6, 2007 Complainant filed a correspondence with the Registrar of Contractors stating that the Corrective Work Order had not been complied with. Complainant requested a hearing on the complaint. 8. On October 12, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. 07-2272 charging Respondent with possible violations of A.R.S. §32-1154A(2), (7), (23), (15), and (3) (specifically, Rule R4-9-108). 9. Respondent filed an answer with the Registrar of Contractors on October 25, 2007 and this matter was set for the instant hearing. 10. At the hearing, Complainant testified and submitted exhibits which were marked, admitted and considered by the tribunal. Mr. Amil Fornatora (“Mr. Fornatora“) testified as an expert witness for Complainant. 11. Sean Alexander (“Mr. Alexander”) and Steve Woods (“Mr. Woods”) testified on behalf of Respondent. Respondent submitted exhibits which were marked, admitted and considered by the tribunal. 12. Inspector Duncan testified on behalf of the Registrar of Contractors and described his observations and conclusions regarding his May 14, 2007 jobsite inspection and his prehearing inspection. 13. From the evidence elicited at the hearing, the following salient facts are important to note: a. Complainant hired Respondent to perform landscaping, flagstone, masonry and electrical work at his residence at 5623 Libby in Scottsdale, Arizona on September 21, 2006. Complainant sought a stacked stone look as a prominent feature at the front entry, support columns, barbeque area and chimney with mortar between the manufactured stones. The contract was silent as to color matching, but called for the installation to be “per plan”. b. Complainant testified that he only received one site plan, a plan on which he affixed his signature indicating his approval on August 21, 2006[1]. That plan called out for “CMU with Faux Stone to Match House…” at the columns at the front Portico. No other color matching requirements are set forth in the plan. c. Frustrated by the application and color of the mortar, and other issues, Complainant brought his concerns to the Registrar of Contractors in his initial complaint on April 3, 2007. Inspector Duncan was assigned and, after his May 14, 2007 jobsite inspection, issued the Corrective Work Order described above to Respondent on May 21, 2007. d. Following the issuance of the Corrective Work Order, Respondent made attempts to correct the work. Some items were rectified and on the last day of fifteen (15) day window to perform corrective work as set forth in the Corrective Work Order, Respondent began to apply a polyblend grout product over the existing mortar to recolor the mortar. At the end of the last day, Respondent had not finished applying the polyblend gout product and asked Complainant for additional time to comply with the Corrective Work Order. Complainant declined to allow Respondent additional time. Complainant testified he believed the product Respondent was applying, and the manner in which it was being applied, was only going to make the appearance of the mortar worse. e. Inspector Duncan conducted a prehearing jobsite inspection a week or two prior to the instant hearing. Inspector Duncan noted that some mortar splatter was still apparent, the electrical box still did not have a finished cover, and that while he felt the attempted color correction was acceptable, the execution was not done in a workmanlike manner, specifically because there were some areas where the polyblend grout did not cover the mortar and there were some areas where the applied colored grout had splattered onto the manufactured stone. f. Mr. Fornatora testified that he was hired as a consultant by Complainant. Mr. Fornatora testified as to his background in evaluating construction deficiencies, including masonry applications. Mr. Fornatora’s testimony regarding his background, experience and practical knowledge regarding construction deficiencies and masonry applications established sufficient foundation for this tribunal to admit and consider his opinions. Mr. Fornatora presented this tribunal with selected samples of the mortar he had removed from the jobsite for demonstrative purposes. Mr. Fornatora opined that the manner in which the polyblend was applied was sloppy, ineffectual, did not provide a fully integrated color match and would lead to additional maintenance issues with the existing mortar. He further opined that the splatter of the colored polyblend grout on the manufactured stone would be all but impossible to clean. Finally, Mr. Fornatora opined that the use of the colored polyblend grout by Respondent was not consistent with the manufacturer’s recommended applications of the product, specifically, he stated the product is intended to fill in cavities, not as an application over existing mortar. g. Mr. Woods was the project manager for the jobsite. Mr. Woods testified that he understood Respondent’s agreement with Complainant to call for the mortar applied by Respondent to match the pool builder’s mortar, not the house mortar, however, Respondent undertook the job to recolor the mortar to satisfy the Corrective Work Order. Mr. Woods also testified to his extensive experience in masonry applications and to his familiarity with the colored polyblend product. Mr. Woods opined that the application would have been satisfactorily completed had Respondent’s employees been allowed additional time to complete the corrective work with the colored polyblend grout. h. Mr. Alexander is the owner of Respondent Blooming Vista Landscape and Design, Inc. Mr. Alexander also testified that the understood Respondent’s agreement with Complainant called for the mortar to match the pool builder’s mortar, not the house mortar. APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 07-2753 charged Respondent with possible violations of A.R.S. §32-1154A(2), (7), (23), (15), and (3) (specifically, Rule 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. …

23. 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 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 violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. …

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than that set forth upon the license. …

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, Complainants 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. This tribunal determines and concludes that Complainant did not deny access to Respondent during the fifteen (15) day corrective work period set forth in the May 21, 2007 Corrective Work Order issued by Inspector Duncan. Furthermore, Complainant’s refusal to grant Respondent additional time was not unreasonable. 4. This tribunal further determines and concludes, however, that Complainant has not established by a preponderance of credible, probative and relevant evidence that Respondent has violated the provisions of A.R.S. § 32-1154A (2), (7) and (15). 5. This tribunal also determines and concludes that Complainant has established by a preponderance of credible, probative and relevant evidence that the application of the mortar, and attempts to perform corrective work on the mortar, are in contravention to Rule R 4-9-108, which requires work to be performed in a workmanlike manner. Furthermore, no valid justification existed for Respondent not to comply with the Corrective Work Order issued on May 21, 2007 in a timely manner. Therefore, this tribunal concludes that Respondent has violated the provisions of A.R.S. § 32-1154A (23), and (3) (specifically Rule R 4-9-108, commonly known as the “workmanship rule”). 6. Complainant has argued a myriad of reasons not to allow Respondent back at the jobsite, including his concerns regarding the tensions that have arisen between the parties due to payment disputes and ongoing Superior court litigation. This tribunal, however, finds none of the reasons sufficiently compelling to disallow Respondent from making appropriate repairs.

RECOMMENDED ORDER In view of the foregoing, it is recommended that, commencing on the effective date of the Order entered in this matter, the Class C-21 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has corrected by appropriate means the mortar color deficiencies, polyblend grout splatter, and electrical junction box cover described in the foregoing findings[2]. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-21 license be placed on a period of 145 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent 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 Respondent’s contractor’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. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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. Done this day, May 1, 2008.

Office of Administrative Hearings

______________________________________ Michael G. Wales Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia, Director 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

----------------------- [1] Complainant’s Exhibit C-43. [2] The parties are free to conclude other mutually agreed arrangements, as an alternative to Respondent performing the required remedial work set forth herein.

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