ALJDEC decisions subject to certification as final

09F-2660-ROC · Registrar of Contractors · 2009-11-12

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2009 APPEARANCES: Complainants: Iver Sondrol appeared, pro per. Respondent: Charles Schaul, Jr., corporate officer and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Scott Deering appeared on behalf of the Registrar of Contractors. 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. This matter convened for hearing at the time, date and place set forth in the September 9, 2009, Notice of Hearing issued by the Registrar of Contractors (“ROC/ Registrar”). 2. Complainants Iver and Karen Sondrol (“Complainants”) are the owners of a residence located at 10636 E. Wildcat Hill Road, Scottsdale, Arizona (“premises/ project”). 3. Respondent Aridscape Concepts, Inc. (“Respondent”) is a corporation that holds Arizona Contractor’s License No. 149285, Class K-21 (Dual Landscape and Irrigation Systems) issued by the ROC on October 13, 1999. Charles Richard Schaul, Jr. (“Schaul”) is a corporate officer and the qualifying party for the license. 4. Complainants filed a Complaint with the ROC on November 5, 2008, wherein they alleged eight (8) problem items resulting from Respondent’s installation of “patios, landscaping, grading and drainage (final), trees and irrigation.” 5. Registrar Inspector Scott Deering (“Deering”) conducted a jobsite inspection on December 16, 2008, and issued a Corrective Work Order (“CWO”) on January 24, 2009, which required Respondent to perform corrective work on Complaint item 1 (firepit to have stone to match house per plan). No action was required on Complaint items 2 through 8. 6. On March 12, 2009, Complainants filed a request for hearing on Complainant item 3 (water drains toward saguaros in back yard. One saguaro has already been replaced and now the other is on its way out due to too much water. When the first saguaro was replaced the saguaro vendor said there was standing water in the hole. This was brought to [Respondent’s] attention but they refused to address it. They will say that they guarantee trees for one year but this isn’t a tree issue it’s a faulty irrigation drainage issue.”) 7. On June 17, 2009, the Registrar issued a Citation and Complaint in Case No. 09-2660 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (2), (7), (23) and (3) (namely, R4-9-108, the workmanship rule). 8. Respondent filed an Answer on July 2, 2009, wherein it asserted, inter alia, that it, in conjunction with its saguaro subcontractor, had “in good faith” replaced one saguaro at Complainants’ “insistence” even though it was “well beyond its 12 month warranty replacement,” that Complainant directed the saguaro subcontractor to install the replacement saguaro in the same hole although a small amount of water was noticed therein which the subcontractor explained were not ideal conditions and could cause the problem to reoccur and that Inspector Deering determined that no action was required of Respondent as pertains to the instant saguaro. 9. Prior to the presentation of any testimony or other evidence at the hearing, Complainants advised this tribunal, and Respondent stipulated thereto, that the scope of the hearing would be limited to CWO item 3. 10. At the hearing, Complainant Iver Sondrol (“Sondrol”) testified and submitted Exhibits C-1, C-2 and C-3. 11. Schoul testified on behalf of Respondent but submitted no exhibits. Gary Carlson (“Carlson”) of Carlson Homes, the general contractor, and Ken Cobb (“Cobb”) of Roadrunner Cactus, the saguaro supplier, also testified on behalf of Respondent. 12. Inspector Deering testified on behalf of the ROC and described his observations and conclusions on his initial jobsite inspection and October 20, 2009 pre-hearing jobsite inspection. 13. Respondent, as a subcontractor, contracted with Carlson Homes to perform landscaping and provide related materials to the project. 14. On approximately October 6, 2006, Respondent planted at least two saguaro cacti on the premises, i.e., a “west” cactus and a “north” cactus. 15. In approximately November 2007, Respondent agreed to replace the north cactus at Complainants’ insistence even though Respondent’s twelve month warranty period had lapsed. At that time, Cobb noticed a small amount water in the hole left by the removed cactus and advised Complainant that that situation needed to be addressed and corrected. Although advised otherwise, Complainant directed that the replacement cactus be placed in the same hole. 16. Contemporaneously, Cobb straightened the west cactus which was leaning. 17. The west saguaro subsequently fell over on Thanksgiving 2008. 18. Sondrol contends that the demise of the west cactus was caused by excessive irrigation and/or incorrect grading/drainage in the area. Sondrol testified that such contention is based on a Scottsdale water audit and the knowledge he obtained from independent research and a landscaping class attended. Sondrol further asserted that Respondent was responsible for the cacti’s health due to the landscape maintenance contract it had with Complainants from January through December 2007. 19. Sondrol further asserted that a representative of Respondent promised to replace the subject cactus. 20. Deering testified that it appeared at his inspections that the conditions surrounding the subject cactus indicated proper grading/drainage and that Respondent was not responsible for any corrective work. 21. From the wealth of testimony by Cobb, Respondent and Deering, many factors could contribute to the death of a cactus including, without limitation, over watering, soil disease, cactus disease, damage during the harvesting and/or installation of the plant and the inherent difficulty in transplanting saguaros and, particularly, older saguaros. 22. Cobb, the saguaro subcontractor, opined that he could not determine the sole reason for the demise of the subject cactus.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 09- 2660 charged Respondent with possible violations of A.R.S. §32-1154 (A) (2), (7), (23) 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 the owner’s 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.

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

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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. … 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 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. 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. It is determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (2) as no viable evidence was presented relative to any plans, specifications, building codes or other applicable standards. 5. It is further determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (23). 6. It is also determined and concluded that Complainants failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (3) (namely, A.A.C. R4-1-108, the workmanship rule) as the cause of the demise of the subject cactus is purely speculative, at best. 7. This tribunal further determines and concludes that Complainants failed to establish that Respondent violated A.R.S. § 32-1154 (A) (7).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. 09-2660 be dismissed. Done this day, November 12, 2009.

/s/ Brian E. Smith Administrative Law Judge

Transmitted Electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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