ALJDEC decisions subject to certification as final

2010A-308472023-ROC · Registrar of Contractors · 2010-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2010 APPEARANCES: Hugh T. Sterns appeared personally. Synscapes of Arizona, L.L.C. was represented by its authorized representative, Kelly Mattson. 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. Synscapes of Arizona, L.L.C. (“Respondent”) is the holder of License No. 193048, a Class K-26 contracting license issued by the Registrar of Contractors (“Registrar”). 2. In August 2009, Hugh T. Sterns (“Complainant”) entered into an agreement with Respondent for Respondent to install landscaping, concrete, flagstone, planters, stucco, curbing, and artificial grass at Complainant’s residence in Surprise, Arizona. 3. On March 29, 2010, Complainant filed a written Complaint with the Registrar, the terms of which are incorporated herein by reference, alleging deficient workmanship by Respondent on the subject project. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted]. 4. On April 8, 2010, the Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection at Complainant’s residence to view the alleged deficient workmanship by Respondent. 5. As a result of his jobsite inspection, Inspector Gerold issued a Corrective Work Order dated April 8, 2010, which required Respondent to timely perform remedial work as follows: 1) Repair stucco cracks at the two block fence panels in rear yard. 2) The entire area where the artificial grass was laid and removed, needs to be refilled, compacted, leveled, curbing re-installed, and the grass re-laid, all done by this contractor at no cost to the complainant. 3) The under-edge of the patio needs proper support[.] 4) The flagstone risers at the patio are breaking away and need to be corrected. 5) Pull back granite where necessary and remove excess flagstone and concrete debris, then re-apply granite[.] 6) Additional gravel needs to be filled in where bare spots are evident and up against flagstone slabs and sidewalks for support.

All above items are to be done by appropriate means.

Note: The complainant did not provide sufficient evidence re: the flagstone mortar cracks, and the sealant was not on the contract. No action is required by this contractor at this time.

6. On June 11, 2010, the Registrar issued a Citation and Complaint in Case No. 2010-[number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, and (23). 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. At the hearing, Inspector Gerold’s testimony was consistent with his findings in the Corrective Work Order. Inspector Gerold did not perform a pre-hearing jobsite inspection because Complainant informed him that Respondent did not perform any remedial work as required by the Corrective Work Order. 9. At the hearing, Kelly Mattson, Respondent’s member, testified that Respondent did not agree with Inspector Gerold’s findings of deficient workmanship in his Corrective Work Order. 10. Mr. Mattson acknowledged that Respondent was aware that Complainant’s swimming pool had been filled in by another contractor.[1] 11. Respondent did not perform any compaction testing for the filled-in swimming pool prior to performing its scope of work. 12. After Respondent performed its scope of work, Complainant’s filled-in swimming pool sank approximately 9 inches, resulting in damage to Respondent’s completed work. 13. Contrary to Respondent’s position that it did not accept the surface of the filled-in swimming pool by performing Respondent’s scope of work, it is determined that Respondent did accept the surface as being suitable for its scope of work. Respondent should have performed compaction testing of the soil, but Respondent did not do so. 14. Respondent is determined to have failed to comply with the Registrar’s Corrective Work Order requiring Respondent to remediate its deficient workmanship. 15. Any allegation contained in Complainant’s Complaint not specifically addressed above is determined to either meet workmanship standards, to comply with the parties’ agreement, and/or to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation. 16. A review of the Registrar’s official electronic records reveals that one resolved/settled/withdrawn complaint is posted against Respondent’s License No. 193048. 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) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 193048 shall be suspended on the effective date of the Order entered in Case No. 2010-[number redacted] until Respondent provides the Registrar with proof, and the Registrar accepts such proof, that Respondent has fully complied with the Corrective Work Order dated April 8, 2010. If, on or before the effective date of the Order entered in Case No. 2010-[number redacted], Respondent provides the Registrar with proof, and the Registrar accepts such proof, that Respondent has complied with the April 8, 2010 Corrective Work Order, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class K-26 contracting license shall be placed on probation for a period of days commencing on the effective date of the Order entered in Case No. 2010-[number redacted] or the date on which the Registrar accepts Respondent’s proof of Respondent’s full compliance with the Corrective Work Order dated April 8, 2010. In addition to the above-provided penalties, if any, 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. 2010-[number redacted], 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 addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period, and only if no claims are then pending. 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 40 days from the date of that certification.

Done this day, October 4, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent was the unsuccessful bidder for filling in Complainant’s swimming pool.

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