ALJDEC decisions subject to certification as final

2011A-2387-ROC · Registrar of Contractors · 2011-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Robert B. Black. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class C-21 (No. 193790) License expired on April 1, 2011. 2. This is a residential matter where the Respondent performed landscaping work on the Complainant’s yard. 3. The Complainant noticed that the irrigations system that the Respondent had installed in her yard was leaking in several areas and repeatedly requested the Respondent to properly correct the problems with the irrigation system. 4. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s landscaping and irrigation system at her residence. 6. The Corrective Work Order provides, in pertinent part, as follows: LICENSE # 193790 ISSUED TO CENTRAL ARIZONA LANDSCAPE MANAGEMENT INC. EXPIRED ON 4/25/11 AND CANNOT DO OR SUBCONTRACT THE RECOMMENDED CORRECTIVE WORK LISTED IN THIS DIRECTIVE. THE ONLY AVAILABLE REMEDY UNDER THIS LICENSE STATUS, IF APPROPRIATE, WOULD BE FINANCIAL SETTLEMENT

CONTRACTOR TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING:

Read carefully as “no action required” by the contractor items are within this order

1. Micro too long and exposed: The Complainant pointed out ¼” micro drip lines at the cactus at the west end of the front yard. This drip line was exposed about 1.5’. The lines pointed out along the block perimeter fence at the west end of the back yard were exposed several feet. They do not appear to have ever been buried. Contractor to correct by appropriate means. 2. White tape on lock threads – no tape: As pointed out by the Complainant, white pipe tape was used on the threads of the backflow device located at the northwest corner of the front yard (near valve box) but it was dripping at the connections. Contractor to correct by appropriate means. 3. Valve leak in the old box – foundation problems: This was pointed out by the Complainant and observed by the inspector. Appears solenoid valve or valves are leaking. Contractor to correct by appropriate means. 4. Foundation of home wet and in jeopardy: This condition was not observed by the inspector at the time of the jobsite inspection. No action required by the contractor. 5. Problem with backflow device: See item #2 above. Contractor to correct by appropriate means. 6. Some parts of the yard gets [sic] too much water and others no water at all: As pointed out by the Complainant, the planter/bed at the front of the home near the entry was full of water. The planter/bed at the rear of the home along the back patio was also full of water and very muddy. Other areas of landscaping appeared to be recently watered in the front and back yards. While some other areas appeared to be dry and didn’t appear in this inspectors opinion to have been watered in quite some time. Upon checking the timer, it was set for 7 days a week, 15 minutes twice a day. Appeared 4 total zones were programmed for this same schedule. In the opinion of this inspector, the contractor should determine why the system does not appear to functioning correctly. Contractor to correct by appropriate means. 7. Exposed water lines: See item #1 above. Contractor to correct by appropriate means. 8. Installed aqua conserve sensor improperly: As pointed out by the Complainant, the sensor is installed at ground level. Per the Complainants other contractor she has consulted with, the sensor should be mounted higher such as the fascia of the roof. It is the opinion of this inspector that the contractor should ensure/confirm that this sensor is installed correctly/appropriately. 9. All work was recently described as completely installed incorrectly by Anthony Aredes of Desert View Landscape: Per the Complainant this is the contractor who stated all of these items were installed incorrectly. 10. I want enough money to have my system installed correctly by a reputable company: This is per the Complainant. This inspector does not have the authority to order or direct any party to refund, reimburse, credit, etc. any monies. 11. I tried calling Robert Black: At the time of the inspection, the Complainant stated she has left the Respondent several messages in which he called her back twice. She stated she wanted him to come out and address these issues but he never did.

7. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the written Corrective Work Order issued in this matter. 8. Credible testimony and evidence established that the Respondent’s workmanship on the Complainant’s yard failed to comply with applicable workmanship and industry standards. 9. Credible testimony and evidence established that when the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter, the Complainant retained an alternative licensed contractor to fully comply with the terms of the Corrective Work Order. 10. Credible testimony and evidence established that the Complainant paid the alternative licensed contractor the total sum of $822.00 for the performance of the corrective work designated in the Corrective Work Order. 11. Credible testimony and evidence established that the Complainant’s cost of $822.00 for the performance of the designated corrective work set forth in the written Corrective Work Order was reasonable and justified under the circumstances. 12. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 5. A.R.S. § 32-1156.01 provides: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $822.00 to the Complainant as restitution for her costs of causing the terms of the Corrective Work Order to be properly complied with. It is further recommended that if the Respondent provides acceptable written poof that it has, as restitution, paid the sum of $822.00 to the Complainant, on or before the effective date of this Order, then the above provided License revocation shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, September 28, 2011.

/s/ M. Douglas 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