ALJDEC decisions subject to certification as final

2010A-308473803-ROC · Registrar of Contractors · 2011-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 1, 2011

APPEARANCES: Complainant Carl Welsh appeared on behalf of Complainants; Respondent was represented by Qualifying Party and Member Robert Blankenship and Member Jenna Blankenship.

WITNESSES: Jim Dimond, ROC Inspector Carl Welsh Robert Blankenship Jenna Blankenship

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The Citation and Complaint issued by the Registrar of Contractors in this matter also alleges that Respondent performed work outside the scope of its license and while its license was suspended. Respondent admits some of the allegations and denies others. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainants’ Exhibit A (photograph of front yard). The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has violated the statutes cited in the Citation and Complaint.

FINDINGS OF FACT 1. Respondent is the holder of license K-21.238133-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install landscaping and irrigation systems for both residential and commercial projects. Respondent’s members are Robert and Jenna Blankenship. Robert Blankenship is the Qualifying Party. The license was suspended by law for lack of bond and non-renewal from November 13, 2009 through August 6, 2010. The license is current and active at present. 2. Respondent was hired by Complainants to remodel the landscaping and install a sprinkler system in Complainants’ front yard at their residence. The work included installing a new sprinkler system, removing a planter, and adding a cement patio with block wall and planters. The contract was created and Respondent performed the work in April 2010, while Respondent’s license was suspended. Complainants paid Respondent in full, but were unhappy with aspects of the work. 3. Complainants filed a complaint with the ROC in June 2010, listing numerous items for correction. ROC Inspector Jim Dimond inspected the jobsite on June 29, 2010. Complainants were present for that inspection, but Respondent was not. The record shows that Respondent was not notified of the jobsite inspection because of a typographical error in the Respondent’s address on the notice sent out by the ROC.[1] This tribunal finds that Respondent was not present at the initial jobsite inspection through no fault of its own. 4. Inspector Dimond found workmanship issues with Respondent’s work and issued a Corrective Work Order (“CWO”) on July 1, 2010. The CWO indentified 13 items for corrective work based on Complainants’ compliant items.[2] The items Respondent was ordered to correct are as follows: Item A-1: After Respondent finished work in front yard, back yard sprinklers did not work.

Item A-2: Drip system installed by Respondent was not working.

Item A-3: Sprinkler system had weak pressure and a broken off sprinkler head.

Item A-4: Loose bricks on the block wall built by Respondent.

Item B-1: Sprinkler layout is poorly designed.

Item B-2: No vacuum breaker at valve box.

Item B-3: Sprinkler heads are not all new or same manufacturer.

Item B-6: Too many sprinkler heads per station; weak pressure and not enough spray coverage.

Item B-7: Valve station #5 has too many heads and sprays to neighbor’s yard.

Item B-8: Drip system not properly installed; no back flow valve.

Item B-9: The valve box is not new and wire nuts are not water- tight.

Item B-11: Respondent removed and replaced a front porch post outside the scope of its license.

Item B-12: No weep holes for drainage at front porch masonry.

Respondent was given 15 days to reinstate its license and correct those items or resolve the matter financially. As noted, Respondent did not reinstate its license until August 6, 2010. 5. Because Complainants had lost trust in Respondent, Complainants requested that Respondent provide a work plan (a statement of how Respondent proposed to make the corrections) before they would let Respondent on the property to perform the work required by the CWO. The requested plan was to include the name of the contractor who was to repair the porch post (Item B-11). This tribunal finds that, under the circumstances of this case, Complainants’ request for a statement of Respondent’s work plan before they gave access to the property was reasonable. 6. Respondent did not submit a work plan. Therefore, no corrective work was performed. 7. The week before the hearing, on February 23, 2011, Inspector Dimond performed a pre-hearing inspection with Respondent present, but Complainants were not present. Since no corrective work had been done, the property was generally in the same condition as at the first inspection. Respondent added information that Inspector Dimond did not have at the initial inspection. The new information did not change Inspector Dimond’s opinion, except as to Item A-3 and Item B-1. For Item A-3, concerning differences in the make of the sprinkler heads, the Inspector found all heads to be similar at the pre-hearing inspection. The only exception was one head on the property line that could have been connected to the neighbor’s system. For Item B-1, concerning sprinkler head layout, the Inspector had noted that there was one head spraying directly into the trunk of a palm tree. However, Respondent told the Inspector that Complainants had informed Respondent during the project that they did not want that sprinkler head moved.[3] In light of that, the Inspector did not find the sprinkler head placement to be Respondent’s responsibility. All other CWO items remained unchanged. 8. At hearing, Respondent’s principals testified about the project. Robert Blankenship testified about the work he performed. He testified that the planter drip system was installed at no charge and that he gave Complainants emitters to put in the system when plants were put into the planters. He also testified that the water pressure for the whole system was adequate. He did not admit any wrongdoing regarding the loose bricks, but is willing to make the correction anyway. 9. Respondent takes the position that it has no further responsibility for the planter drip system because it did not charge Complainants for the installation. As pointed out by Inspector Dimond, that is not a valid defense. All work done by a licensed contractor must meet minimum workmanship standards. Respondent also takes the position that there is a backflow valve already on the sprinkler system. This may be true, but was not addressed and verified by Inspector Dimond. Finally, Respondent takes the position that the patio weep holes ordered in Item B- are not needed because the patio drains adequately. However, Inspector Dimond testified that minimum workmanship standards require them. 10. This case is complicated by the circumstance that not all parties and the Inspector were present on the site at the same time. This made it difficult for the Inspector to sort out the true situation for the CWO items. Some of the items may be partially corrected at this time and only in need of inspection by Complainant and Respondent together to determine the scope of further correction. 11. The evidence supports Inspector Dimond’s testimony and opinion with regard to the CWO items. 12. The evidence shows that CWO Items A-1, A-2 (water pressure needs to be checked for potential correction), A-4, B-2, B-6, B-7, B-8, B-9, B- 11, and B-12 require corrective action. A properly licensed contractor needs to correct Item B-11, the front porch post. The evidence shows that the sprinkler head that sprays the palm tree is acceptable to Complainants and does not need to be moved. CWO Items A-3, B-1, and B-3 have been corrected. 13. The evidence shows, and Respondent did not challenge, that Respondent performed work outside its scope of license by removing and replacing the front porch post, which is a structural member of the home. 14. The evidence shows, and Respondent admitted, that Respondent performed contracting work while its license was suspended by law. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The evidence shows violations, as alleged in the Citation and Complaint, of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) by failing to comply with local code, (A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, (A)(17) by knowingly contracting outside the scope of the license, (A)(18) by contracting while on a suspended license, and (A)(23) by failing to comply with an ROC Corrective Work Order.[7] 3. A review of Respondent’s current license status shows that the license is current and in good standing since 2007, other than the suspension already noted above. 4. One of the appropriate sanctions in this matter is to allow Respondent to correct the landscaping work. If Respondent does not do so in a timely manner, its license should be revoked. A substantial civil penalty is also warranted in this case. Furthermore, Respondent’s bond should be increased to protect the public. 5. As for the porch post repair, Respondent should be ordered to reimburse Complainants the cost of that repair after Complainants hire an appropriately licensed contractor who then performs the work. Complainants may choose and hire the contractor for that work. RECOMMENDED ORDER IT IS RECOMMENDED that license K-21.238133-D, held by Superscape, LLC, be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that all items in the July 1, 2010, CWO have been corrected as noted above in Finding of Fact 12 and Conclusion of Law 5 and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that, in addition to the sanction provided above, license K-21.238133-D, held by Superscape, LLC, be revoked beginning the effective date of the Registrar’s Order unless Respondent first posts an additional surety bond, cash deposit, or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above-provided twenty-four (24) month period and only if no claims are then pending. IT IS FURTHER RECOMMENDED that if Respondent provides written proof of compliance with the corrections and increased bond requirement stated in the previous two paragraphs on or before the effective date of the Registrar’s Order, license revocation shall not take place and case 2010- [number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanctions provided above, Respondent Superscape, LLC, pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, March 21, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Post Office Box on the notice stated “851” when the correct number is “861.” [2] There were also a few items that did not require action, and Complainants confirmed at the hearing that they are not appealing those items. [3] This was confirmed at hearing. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] There are also other citations that were not addressed by the evidence presented at hearing.

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