ALJDEC decisions subject to certification as final

07F-G2009-ROC · Registrar of Contractors · 2008-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 2, 2008. APPEARANCES: Darlene Tesner appeared personally. Landscaping, LLC was represented by its member and qualifying party, Edward Khocaba. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Landscaping Essentials, LLC (“Respondent”) is the holder of License No. 195503, a Class K-21 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about March 26, 2007, Respondent and Darlene Tesner (“Complainant”) entered into a written agreement for the following scope of work to be performed at Complainant’s backyard:

1) Install textured concrete on patios and pool deck prep. color & seal all. (Brown tones) 2) Install cobblestone pavers (Pima blend) between patios and where grass area is. Hall away rocks & grass. 3) Construct fire pit with 2 benches with backs (stucco finish). 4) Install BBQ island with 4 burner stainless grill. Finish stucco and textured table top. 5) Install granite (Gold) 3 tons. 6) Install lighting. Uplight trees.

3. The parties’ contract also provided a plant budget of $1,000.00. 4. The total contract price was $12,916.00. The contract price was to be paid by Complainant as follows: 50% before starting work; 25% when stone arrives; and, 25% upon completion. 5. At some point in time the scope of work was expanded to include the purchase and placement of granite on Complainant’s front yard. That work was not performed. 6. On or about June 12, 2007, Complainant filed a written Complaint with the Registrar alleging numerous deficiencies by Respondent. 7. In response to the filed Complaint, the Registrar’s assigned inspector, Eric Ulinger, performed a jobsite inspection to view Respondent’s alleged deficient workmanship. The jobsite inspection resulted in Inspector Ulinger issuing a Corrective Work Order dated July 23, 2007, which directed Respondent to timely perform or cause to be performed the following remedial work to its deficient workmanship:

**Note** This contractor is not properly licensed to perform the work on item #1 and portions of item #3. The contractor is to obtain the proper licenses or hire a properly licensed contractor to perform the work on these items.

1) Gas line leaks and permit has not been obtained. Contractor to pull all necessary permits, have all required inspections, and make any and all corrections determined by the local building official. Work performed on this item is to be completed by a properly licensed contractor.

2) BBQ grease trap is difficult to access. Although some models of BBQs have a slide tray to access the grease trap, the contract provided to this inspector does not include the make and model #. Therefore, no action is required of the contractor.

3) Sand used at pavers is an improper type. The contractor is to correct by appropriate means. (Note: This contractor is not properly licensed to perform work over a load bearing slab, therefore work in that area is to be performed by a properly licensed contractor.)

4). Landscape lights are not installed at the plants behind the fire pit. This item does not appear to be included on the contract provided. Therefore, no action is required of the contractor.

5). Trash was placed in the homeowner’s recycling garbage bin. The contractor is to correct by the appropriate means, per jobsite agreement.

6). One tree and six plants died. As determined at the jobsite inspection, it appears the plants and tree suffered due to lack of water. Homeowner confirms that the watering system was worked on by others. Therefore, no action is required of the contractor.

7). Drip system in the backyard does not operate. Drip system operated at the time of the jobsite inspection. No action is required of the contractor.

8) Roots not removed. Per the homeowner, this item was corrected prior to the jobsite inspection and is no longer an issue. – No action is required of the contractor.

9) Drip line never laid. Same as #8

10) Plants never purchased. Same as #8.

11) Homeowner was not provided with a legible contract. The contractor is to correct by the appropriate means per jobsite agreement.

12) Homeowner wants to be reimbursed for work not performed. The contractor is to resolve this issue with the homeowner by the appropriate means, per jobsite agreement.

13) Water leaks under pavers. Contractor to correct by the appropriate means per jobsite agreement.

8. The Registrar issued a Citation and Complaint in Case No. G07-2009 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (17), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. §§ 32-1124(B) and 32-1158. 9. The Registrar forwarded Case No. G07-2009 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. Respondent exceeded the scope of it contracting license by installing the gas lines for the fire pit and barbeque, which requires a plumbing contracting license. 11. Respondent performed the installation of the gas lines without a required building permit. 12. Respondent did not comply with item number 1 of the Corrective Work Order. It did not pull the required building permit and it failed to have the gas lines completed by a properly licensed contractor. 13. Respondent did not comply with item number 3 of the Corrective Work Order, which required it to address the issue of the pavers. 14. Respondent’s installation of pavers over a load bearing slab in Complainant’s backyard exceeded the scope of its contracting license. Respondent failed to cause a properly licensed contractor to perform the required remedial work for the pavers installed over the slab. Respondent also failed to perform remedial work to pavers not installed over the load bearing slab, which scope of work is permitted to be performed under its Class K-21 license. 15. Respondent failed to timely comply with item number 11 of the Corrective Work Order, which required it to provide Complainant with a legible copy of the parties’ contract. It was not until the hearing that Respondent provided Complainant with a legible copy of the contract. 16. Respondent failed to timely comply with item number 12 of the Corrective Work Order. Respondent has not reimbursed Complainant for work not performed by it. 17. Item number 13 was corrected by others hired by Complainant. 18. The parties’ contract does properly list Respondent’s contracting license number. 19. Respondent’s out of scope contracting, its failure to comply with local building code require for obtaining a permit for the gas lines, its deficient workmanship and its failure to substantially comply with the Registrar’s written directive are wrongful act that substantially injured Complainant. 20. A review of the Registrar’s official records reveals that Respondent’s contracting license was suspended by operation of law on January 10, 2008 for lack of bond and again on May 1, 2008 for nonrenewal.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. Respondent performed out of scope plumbing work on gas lines without a required building permit. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as cited in the Citation and Complaint issued by the Registrar. Respondent exceeded the scope of its contracting license by performing work on the gas lines and the installation of pavers on a load bearing slab. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Respondent did not substantially comply with the Registrar’s written directive. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. 8. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar. Respondent’s contracting license number was properly listed on the parties’ contract. 9. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as cited in the Citation and Complaint issued by the Registrar. There is no credible evidence to support the alleged violation.

RECOMMENDED ORDER

Respondent’s License No. 195503 shall be revoked on the effective date of the Order entered in Case No. G07-2009. Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Case No. G07-2009 shall result in the automatic revocation of Respondent’s contracting 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) (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 will be 45 days from the date of that certification. Done this day, June 23, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________ -----------------------

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