ALJDEC decisions subject to certification as final

07F-G0215-ROC · Registrar of Contractors · 2007-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2007 APPEARANCES: Complainants appeared through Co-Complainant, John Kreczmer (“John”) and Respondent was represented by its attorney, David Brnilovich. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainants retained Respondent to install a new landscape on their property. Complainants allege certain deficiencies in the work performed and/or materials provided and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. John testified regarding a crack in the wall surrounding the pool equipment. Although Respondent was given an opportunity to correct same, when he failed to perform the necessary corrective work, John made the repair on his own behalf. He indicated that the repair was somewhat minor in nature and he was not seeking any restitution from Respondent in this regard. b. There are cracks in the stucco surrounding the fire pit. According to John, Respondent made an attempt to correct this problem but cracks remain and the stucco has not been painted. c. Several pygmy palms and one medium palm, all planted by Respondent, have died. d. Four (4) queen palms, planted by Respondent, have died. e. Two (2) hibiscus, four (4) oleanders, and two (2) orange bells have also died. These are all plants installed by Respondent. f. John asserts that the irrigation system was not designed properly by Respondent and this caused the above-described plants to die. g. Complainants have since hired others to change aspects of the irrigation system and to replace the dead plants. In this regard, Complainants paid $600.00 for work on the irrigation system and $2,457.00 for new plants to be installed on their property. Complainants seek restitution against Respondent for these expenditures. In addition, Complainants continue to seek further remedial work from Respondent on the cracks in the fire pit and the need for re-painting in said area. h. John testified that the dead plants in question were installed in November and/or December of 2005. Evidence of record showed that the applicable contract provides only for a six (6) month warranty on plants. In addition, said warranty requires that any claim for dead or dying plant material must be conveyed to Respondent in writing. John does not contest the fact that he did not make a written warranty claim on the plants in question, during the six (6) month warranty period. In fact, the instant Complaint was not filed with the Registrar of Contractors until August 7, 2006. i. Respondent asked this Tribunal to take notice of the Registrar of Contractors’ August 2004 booklet on Workmanship Standards for Licensed Contractors. On page 22 of this booklet, under the heading of “landscaping,” in the category of “plants dying”, the document provides that a “contractor should replace affected plants within warranty period…” (emphasis added). j. John denies making any changes to the timer or his watering pattern, which would have had a deleterious effect on the health of the plants in question. k. After the instant Complaint was filed with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the instant hearing and presented testimony. l. After receiving the Complaint, the inspector convened a jobsite inspection. Subsequent to concluding the jobsite inspection, the inspector issued a Corrective Work Order (“CWO”). The CWO required Respondent to repair the pool wall, repair the fire pit cracks, remedy the issue with all of the dying or dead plant material, and to perform remedial work on the irrigation system design. m. At a pre-hearing inspection, the inspector found that the fire pit cracks had not been fully repaired and was advised by Complainants that they had others correct the irrigation and the dead plant issues. n. The inspector indicated that he does not have a background in landscape work. Nevertheless, it was his opinion that the irrigation system installed by Respondent, which had all of the front and rear plants on one zone, was not adequate or proper to water the number of plants installed on Complainants’ property. o. Ivan Brnilovich (“Ivan”), Respondent’s member and qualifying party, appeared and testified at the instant hearing. p. According to Ivan, the irrigation design and set up was installed in accordance with manufacturer’s specifications and there is nothing improper or inadequate about having the number of plants on Complainants’ property on the same irrigation zone. q. Ivan further testified in regard to the fire pit, indicating that Respondent made the required repairs but was waiting for Complainants to provide the necessary paint code, in order to paint the fire pit after repairing the cracks. He claims that requests for the paint code were made to Complainants and no response was received. r. Ivan testified that he did not receive any warranty requests for the dying plants during the six (6) month warranty period.

3. The dead plants in question are living organisms, known to be affected by a wide variety of surrounding conditions. Complainants have the burden or proof in this matter and the evidence presented was not found to be adequate to support any finding of a lack of proper or adequate workmanship by Respondent, which may have contributed or caused the demise of the plant materials in question. Moreover, the applicable contract provides specific warranty limitations and the evidence presented was inadequate to support any finding that Complainants made a plant warranty claim with the warranty time period provided in said contract.

4. The cracks in the fire pit and pool equipment wall are found to constitute substandard and unacceptable workmanship, attributable to Respondent. Although Respondent made an effort to work on the fire pit cracks, this remedial work was not completed and remains Respondent’s responsibility. As aforementioned, Complainants have already corrected the problem with the pool wall.

5. The evidence of record was inadequate to support any finding that the irrigation system installed by Respondent was either not in accordance with manufacturer’s standards or any other industry standards. Complainants failed to sustain the burden of proof on this issue.

6. Respondent’s failure to correct the cracks on the pool equipment wall and the fire pit constitutes a violation of the applicable charged section of the State’s Contracting laws regarding the need to comply with the terms and conditions of the Agency directive (CWO). However, the fact that Complainants failed to cooperate, in providing the color of the paint for the repair, militates against the imposition of any civil penalty in this regard.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class K-21 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the cracks in the fire pit, including re- painting after all crack repairs are completed. Any failure of Complainants to cooperate in providing the paint color to be applied to the repaired fire pit, after receiving a certified letter from Respondent, requesting such information, shall be deemed to be tantamount to Respondent’s compliance with the condition of the Order entered in this matter. 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 and in that event this Citation (no. G07-0215), together with the Complaint upon which it is based, shall be closed.. 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, June 21, 2007.

______________________________________ Mark A. Silver 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 ___________________________

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