ALJDEC decisions subject to certification as final

2012A-1817-ROC · Registrar of Contractors · 2012-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 2, 2012 at 8:00 a.m. APPEARANCES: Complainant Ken Zinser appeared on his own behalf; Respondent Desert Eagle Home Improvements LLC dba John Baker and Peter Baker appeared through John Andrew Baker, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (the Registrar) issued License No. K- 34.254542-D for dual painting and wall covering to Desert Eagle Home Improvements LLC DBA: John Baker and Peter Baker (Respondent). Desert Eagle Home Improvements LLC DBA: John Baker and Peter Baker also holds License No. K-42.259987-D for dual roofing. On or about April 6, 2012, the Registrar received a Complaint from Ken Zinser (Complainant) against Respondent that set forth 38 specific complaints about Respondent’s performance of a contract to paint Complainant’s house and fence at 8318 East Whispering Wind Drive, Scottsdale, Arizona. According to the Complaint, the contract amount was $4,000.00, Complainant had paid Respondent $1,200.00, Complainant still owed $2,800.00 on the contract, and Respondent had last performed work on the contract on April 5, 2012. To resolve the Complaint, Complainant requested that the Registrar require Respondent to “[c]omplete scope of work, clean up over-spray and drips, replace damaged items and items that cannot be cleaned.” The Registrar assigned the Complaint to its inspector, Scott Deering, for investigation. On April 30, 2012, Inspector Deering performed a jobsite inspection and issued a Corrective Work Order (“CWO”) that required Respondent within 15 calendar days to perform appropriate action to correct of the 38 items on the Complaint. On or about May 21, 2012, the Registrar received a letter from Complainant with a copy of the CWO on which he had marked the status of each of items that Respondent had been required to correct. Complainant stated that he wished to pursue the Complaint because Respondent had informed him that he would not perform any further corrective work. The Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent’s qualifying party and member, John Baker, filed a timely written answer to the Citation and Complaint, denying any statutory violations. Mr. Baker affirmatively alleged that although Respondent’s K- license did not allow it to perform landscaping, he believed that the $2,800.00 that Complainant still owed under the parties’ contract should be sufficient to repair the landscaping that had been damaged by overspray. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 6, 2012. Such prior License record reflects that Respondent’s license was current and one complaint was pending against the license. Hearing Evidence Complainant’s residence is located on a 1-acre parcel in north Scottsdale. The property has extensive desert landscaping enclosed by a wrought iron fence and native desert plants outside the fence. The parties’ contract required Respondent to paint the exterior of Complainant’s residence and the wrought iron fence. Inspector Deering performed a prehearing jobsite inspection on October 31, 2012, at 9:30 a.m. Mr. Baker acknowledged that Respondent failed to cover fixtures, plants, and landscaping materials around the residence and fence and that, as a result, overspray from the painting project caused collateral damage to Complainant’s property. Mr. Baker acknowledged that landscaping and horticulture were beyond the scope of Respondent’s K-34 license. Complainant requested that the Registrar require Respondent to pay restitution in the amount of $38,577.18 based on estimates of the costs to repair the damage that Respondent had caused to Complainant’s property.[1] Mr. Baker testified that although Complainant had demanded that Respondent pay money to resolve the Complaint, Mr. Baker was not aware that he could obtain estimates for repairs or that the amount of Complainant’s damages would be at issue at the hearing. Items that Remained at Issue Overspray on Plumbing Valves (CWO Item #6) Respondent partially corrected the overspray on the plumbing valves. However, Mr. Baker acknowledged that Respondent broke the cover of the vacuum breaker. Inspector Deering testified that the cover remained broken at the prehearing jobsite inspection. Complainant submitted a proposal from Kevens Landscape Co., License No. C- 21.110489-R for residential landscaping and irrigation systems dated May 29, 2012 (“Kevens’ proposal”).[2] Kevens’ proposal includes a line item amount of $600.00 to replace approximately 20 drip lines and to remove and replace the pressure vacuum breaker per “CUSTOMER NOTE.” Overspray on Arch at Front Door (CWO Item #7) Respondent’s failure to properly mask the stained wooden arch at the front door resulted in overspray on the arch. Complainant testified that Respondent’s efforts to correct the overspray had caused further damage to the arch. Complainant submitted a proposal from Desert Rose Door Refinishing LLC, License No. K-5.215615-D for door, window and baseboard finishing (“Desert Rose”) dated July 5, 2012, in the amount of $1,380.00 for the following scope of work: Single entry door with frame and surround. . . . .

Place door/s on saw horses, strip exterior side of door/s, frame and surround to bare wood, sand to remove any remaining finish, take care of any holes, cracks, and prepare door for stain, stain to desired color, apply high UV protective finish.[3]

Mr. Baker testified that Desert Rose’s proposal was excessive because the paint overspray could be repaired by removing the overspray and touching up the stain and finish on the arch. Two Broken Landscape Lights at Front Walkway (CWO Item #8) Respondent broke two landscape lights during the course of painting Complainant’s residence and fence. Inspector Deering testified that the broken lights had been corrected at the time of the prehearing jobsite inspection. Complainant testified that the landscape lights were on the front walkway and needed to be replaced to avoid the danger of an unlighted walkway. Complainant testified that because the style of the landscape lights could not be matched exactly, he replaced all of the landscape lights. Kevens’ proposal included a line item of $944.00 to replace path lights.[4] Neither Kevens’ proposal nor any other evidence includes the number or location of the landscape lights. Mr. Baker testified that he does not remember what the landscape lights looked like, but argued that it was excessive for Complainant to ask him to pay to replace all of the landscape lights. Broken Roof Tiles and Overspray on Roof Tiles (CWO Item #10) Inspector Deering testified that at the time of the prehearing jobsite inspection, one broken roof tile had not been repaired or replaced. Inspector Deering testified that in addition, overspray remained on one raked tile in the rear bay window area. Complainant submitted a proposal from L R Acquisitions Inc. DBA: Lyons Roofing, License No. K-42.205554-D for dual roofing (“Lyons”) dated October 31, 2012, in the amount of $345.00 to “Remove & Replace up to 25 Clay ‘S’ Tiles at various locations.”[5] The photographs of the damaged tiles that Complainant submitted showed only one broken tile and one tile with overspray on it.[6] Paint on the Pool Equipment at East Side of House (CWO Item #17) Inspector Deering testified that Complainant had replaced the filter equipment at the time of the prehearing inspection. Inspector Deering testified that there was still overspray on the pool motor. Complainant testified that he had the pool filter replaced because he was tired of looking at the overspray. Complainant submitted an invoice from Postorino Pool Service and Repair Inc., License No. C-6.143409-R for residential swimming pool service and repair (“Postorino”) dated June 26, 2012, in the total amount of $1,248.04 for a new pool filter.[7] Mr. Baker testified that the overspray could have been cleaned off the pool filter and that Complainant’s claim for a new pool filter was excessive. Complainant suggested that Respondent should be required to pay Postorino’s June 26, 2012 invoice to replace the pool filter. Complainant testified that he would be willing to remove the overspray on the pool pump at his own cost. Overspray on Palm Tree on Southeast Side of Pool (CWO Item #24) Overspray on Palm Tree on Northwest Side of Pool (CWO Item #25) Inspector Deering testified that the overspray on the palm trees on either side of the pool had not been corrected at the time of the prehearing jobsite inspection. Complainant submitted photographs of overspray on the palm fronds.[8] Kevens’ proposal included line item for a three-foot and a 15-foot saguaro, assorted five-gallon plants, removal and trimming of plants/trees, and “Mexican FP 6’ to 8’” in the total amount of $13,857.52.[9] No specific line item addressed the cost of correcting the palm trees. Mr. Baker testified that the overspray on the palm fronds could be corrected by trimming the trees. Overspray on Landscaping Granite (CWO Item #27) Overspray on Landscaping Boulders (CWO Item #28) Overspray on Landscaping River Rock (CWO Item #29) Respondent’s performance of the painting project resulted in overspray on landscaping granite, landscaping boulders, and landscaping river rock along the perimeter of Complainant’s residence and the wrought iron fence. Inspector Deering testified that at the time of the prehearing jobsite inspection, there was still overspray on landscaping granite near the fence and house. Inspector Deering testified that landscaping boulders were set periodically around Complainant’s yard and that the boulders near the fence still had overspray on them. Inspector Deering testified that approximately 12’ of river rocks in landscape washes on the west side of the property still had overspray on them. Kevens’ proposal included a line item amount of $3,855.48 to remove and replace 15 tons of granite, 1 ton of river rock, and twelve 2’ x 3’ landscape boulders around the home and fence area.[10] Mr. Baker agreed that some of the granite and river rock needed to be replaced, but argued that because these items did not need to be completely replaced, Kevens’ proposal was excessive. Mr. Baker argued that the landscaping boulders could be cleaned and did not need to be replaced. Overspray and Paint Drips on Cool Deck (CWO Item #30) Inspector Deering testified that at the time of the prehearing inspection, the east side of the cool deck still had paint drips on it. Complainant submitted photographs that showed barely visible striations in the cool deck.[11] Complainant testified that the striations resulted from Respondent power-washing the cool deck to remove the overspray. Complainant submitted a proposal from Desert Sun Pool Service and Repair Corp DBA: Desert Sun Pools, License No. B-6.090925-R for residential general swimming pool contracting, including solar (“Desert Sun”), dated May 22, 2012, in the amount of $4,926.86 to resurface, grind, and recoat the cool deck.[12] Complainant testified that $150.00 that was included in Desert Sun’s proposal to “[r]epair chip out of cantilever” should be deducted from the amount that Respondent was required to pay because Respondent did not cause the chip. Complainant also testified that he offered to split the cost of repairs with Respondent because the cool deck was not new. Mr. Baker testified that Respondent removed the paint but not the finish when it power-washed the cool deck. Mr. Baker testified that the finish on the cool deck could be restored by a product that was formulated for that purpose. Mr. Baker testified that repairing the paint drips and overspray did not require grinding and resurfacing the cool deck. Overspray on and Damage to Landscape Plants (CWO Item #32) Inspector Deering testified that some of the landscape plants had been replaced by Complainant at the time of the prehearing jobsite inspection, but that a yucca plant still had overspray on it. Complainant disagreed with Inspector Deering and submitted photographs of other landscape plants that had overspray on them, including aloe, barrel cactus, yucca, and other plants.[13] All of the landscape plants in Complainant’s photographs appeared to be green and healthy. As noted at Finding of Fact No. 33, Kevens’ proposal included a line item to remove and replace or trim landscape plants at a total cost of $13,857.12. Overspray on Irrigation Drip Lines (CWO Item #33) Respondent caused paint overspray on some of the plastic drip irrigation lines for Complainant’s landscaping plants. Inspector Deering testified that the overspray on the drip irrigation lines had not been corrected when he performed the prehearing jobsite inspection. No evidence was submitted regarding the number of drip lines that had overspray on them or whether the drip lines could be cleaned. As noted above in Finding of Fact No. 15, Kevens’ proposal includes a line item amount of $600.00 to replace approximately 20 drip lines and to remove and replace the pressure vacuum breaker per “CUSTOMER NOTE.” Overspray on Native Plants, Especially West Side of Property (CWO Item #34) Inspector Deering testified that the overspray on the native plants outside the fence had not been corrected at the time of the prehearing jobsite inspection. Complainant testified that Arizona law prohibits removal or damage to native desert plants. Complainant testified that he has not received any notices from his homeowners’ association or from the county because his residence is set far enough back that the damage to the native plants is not visible from the road. Complainant submitted photographs that showed overspray on numerous native plants outside the fence, including Palo Verde trees, Saguaro cactuses, and Staghorn cactuses.[14] Although Complainants’ photographs showed overspray on some plants, the plants appeared to be mostly green and healthy. As noted in Finding of Fact No. 33, Kevens’ proposal included a line item in the amount of $13,857.52 to remove and replace or to trim plants. It is not clear whether Kevens’ proposal included the native plants. Mr. Baker testified that the overspray on the native plants could be removed by trimming the plants. Overspray on Planting Pots on West Side of Property (CWO Item #35) Inspector Deering testified that at the time of the prehearing jobsite inspection, he could see that someone had tried to clean the planting pots but that they still had overspray on them. Complainant testified that the ceramic planting pots were expensive Indian pots that he had purchased in Sedona. Although Complainant estimated that it would cost $150.00 to replace the pots,[15] he did not submit any invoices, receipts, or catalogues. Complainant did not submit any evidence from a restoration expert that the pots could not be repaired. Overspray on Palo Verde Tree on the East Side of Pool (CWO Item #36) Inspector Deering testified that there was still overspray on the large Palo Verde tree on the east side of the pool at the time of the prehearing jobsite inspection. Complainant testified that the Palo Verde tree is a 40 or 50-year-old specimen that is the focal point of his yard. Complainant submitted an e- mail from Keven Pauling, the qualifying party and officer of Kevens Landscape Co., explaining why Kevens’ proposal did not include the Palo Verde tree: The mature palo verde tree west [sic] of the pool has considerable damage but we did not include this damage in the quote. I estimate that the tree is worth 10,000 and it is simply not practical to replace. Nor can it be cleaned or ‘fixed’ with out causing further damage. The tree replacement would require a crane able to move 6 tons over your house. Not easy to do.[16]

Complainant requested that the Registrar require Respondent to pay him $10,000.00 to compensate him for the overspray on the Palo Verde tree. Mr. Baker testified that he attempted to clean the latex paint overspray from the Palo Verde tree with rags and water and that he managed to remove some of the overspray. Mr. Baker testified that he stopped cleaning the Palo Verde tree at Complainant’s wife’s request when she told him that her landscaper stated that cleaning the latex paint from the Palo Verde tree with a rag and water could kill the tree. The photographs of the Palo Verde tree that Complainant submitted show that although the tree has paint overspray on it, it appears to be mostly green and healthy.[17] Overspray on Saguaro Cactus on West Side of Pool (CWO Item #37) Respondent caused significant overspray on a large 15 or 16-foot Saguaro cactus on the west side of Complainant’s pool. Respondent attempted to remove the overspray by power-washing the cactus. As a result, the cactus had large areas with brown scale on the side that faces the pool. Inspector Deering testified that Respondent’s attempts to clean the cactus caused further damage and bruising to the cactus. Inspector Deering testified that although he is not an arborist, the cactus no longer has a pristine appearance and he does not know whether the cactus will survive. Complainant testified that before Respondent performed the painting project, the saguaro cactus was a pristine specimen but that after Respondent caused overspray on the cactus and attempted to clean the cactus by power-washing it, the cactus is rotting and dying.[18] As noted at Finding of Fact No. 33, Kevens’ proposal included a line item amount of $13,857.52 to remove and replace or trim landscape plants, including the large Saguaro cactus. Mr. Baker acknowledged that Respondent had severely damaged the large Saguaro cactus, but argued that it is not known at this time whether the cactus will die as a result of the damage. Failure to Clean Up Paint Chips and Masking Materials (CWO #38) Inspector Deering testified that at the time he performed the prehearing jobsite inspection, the jobsite appeared to have been cleaned up. Complainant disagreed with Inspector Deering’s assessment and submitted photographs of the jobsite that he testified he had taken on Wednesday, October 31, 2012, the same date that Inspector Deering performed the prehearing inspection. The photographs showed two small packages, which Complainant testified were for paint brushes, some white material, which Complainant testified was caulk, and a 5” or 6” piece of masking tape. Complainant requested that the Registrar require Respondent to pay him $300.00 for the cost of the cleanup.[19] CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[20] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[21] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[22] Complainant established that when Respondent performed the painting project at Complainant’s residence, it left overspray on the plumbing valves (CWO Item #6), the arch at the front door (CWO Item #7), one roof tile (CWO Item #10), the pool filter and motor (CWO Item #17), two palm trees (CWO Items #24 and #25), landscaping granite, boulders, and river rock (CWO Items #27, #28, and #29), the cool deck (CWO Item #30), other landscaping plants (CWO Item #32), some irrigation drip lines (CWO Item #33), some native plants (CWO Item #34), planting pots (CWO Item #35), the 40 or 50-year-old Palo Verde tree (CWO Item #36), and the 15 or 16-foot Saguaro cactus (CWO Item #37). Complainant also established that Respondent broke and failed to repair the cover of the vacuum breaker (CWO Item #6), two landscape lights (CWO Item #8), and one roof tile (CWO Item #10). Complainant thereby established that Respondent violated A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108,[23] in its performance of its contract to paint Complainant’s house and fence. Complainant established that Respondent failed to perform corrective work in a professional and workmanlike manner to fully comply with the CWO with respect to the broken vacuum breaker cover on the plumbing valves (CWO Item #6), the overspray on the arch at the front door (CWO Item #7), the overspray on one roof tile and the broken roof tile (CWO Item #10), the overspray on the pool pump (CWO Item #17), the overspray on the two palm trees by the pool (CWO Item #24 and #25), the overspray on the landscaping granite, boulders, and river rock (CWO Items #27, #28, and #29), the overspray on the cool deck (CWO Item #30), the overspray on the other landscape plants (CWO Item #32), the overspray on the irrigation drip lines (CWO Item #33), the overspray on the native plants (CWO Item #34), the overspray on the planting pots (CWO Item #35), the overspray on the large Palo Verde tree (CWO Item #36), and the damage caused by attempts to clean by power-washing the large Saguaro cactus (CWO Item #37). Complainant thereby established that Respondent violated A.R.S. § 32-1154(A)(23).[24] Complainant did not establish that after the CWO was issued, Respondent failed to clean up the jobsite in accordance with the Registrar’s and industry standards (CWO Item #38). Complainant did not establish that he is entitled to restitution under A.R.S. § 32-1156.01 in any amount for the costs that he incurred before the prehearing jobsite inspection to replace all of the landscape lights (CWO Item #8) or the pool filter (CWO #17). Of the sixteen remaining items that Respondent failed to repair, only the overspray on the arch at the front door (CWO Item #7) and the overspray on the roof tile and the broken roof tile (CWO Item #10) may lie within the scope of License Nos. K-34.254542-D or K-42.259987-D. Complainant credibly testified that Respondent’s attempts to correct the overspray on the roof arch caused further damage. In light of the magnitude of the collateral damage that Respondent caused at Complainant’s property and the fact that most of the repairs are beyond the scope of License Nos. K-34.254542-D and K-42.259987-D, Complainant should not be required to allow Respondent to attempt further repairs at his property. Until the hearing, however, Respondent had not received notice that Complainant would be seeking compensation for the damages that he sustained as a result of Respondent’s statutory violations. Therefore, because Respondent was not prepared to offer evidence in response to Complainant’s evidence, it should be allowed an opportunity to obtain evidence on the issue of the amount of Complainant’s damages. With the exception of the 15 or 16-foot Saguaro cactus (CWO Item #37), the plants that were damaged by overspray all appear to be healthy (CWO Items #24, #25, #32, #34, and #36). Complainant did not submit evidence to establish the itemized cost of replacing the Saguaro cactus. With the exception of the large Palo Verde tree (CWO Item #36), Complainant submitted no evidence from qualified landscapers, arborists, or horticulturists that overspray from water-based latex paint cannot be removed from the trucks and braches of any of the other healthy desert trees and other plants with water or a water-based solvent. Some of the plants, such as the palm trees, are trimmed or pruned during normal maintenance and others may drop leaves during certain seasons or at certain points of their usual life cycles. The effect of weather and normal growth may cause the appearance of the overspray to become less pronounced over time. Even if the latex paint overspray cannot be removed without damaging the healthy plants, requiring Respondent to pay the cost of removing and replacing healthy plants, especially when compared to any long-term diminution in value caused by the overspray, may constitute economic waste and result in a windfall to Complainant.[25] Complainant’s evidence of the costs to repair the overspray on the arch at the front door (CWO Item #7), the roof tile (CWO Item #10), landscaping granite, boulders, and river rock (CWO Items #27, #28, and #29), the cool deck (CWO Item #30), the irrigation drip lines (CWO Item #33), and the planting pots (CWO Item #35) also appeared inflated and excessive. Complainant’s evidence of the cost to repair the broken vacuum breaker cover (CWO Item #6) was not itemized and Complainant’s evidence of the cost to repair twenty broken roof tiles was excessive because the evidence established that Respondent only broke one roof tile. Although Complainant is entitled to recover some money from Respondent for CWO Items #6, #7, #10, #17 (pool pump only), #24, #25, #27, #28, #29, #30, #32, #33, #34, #35, #36, and #37, the evidence submitted at the hearing does not allow the amount of compensable restitution to be fairly liquidated. Therefore, a finite disciplinary suspension of Respondent’s license under A.R.S. § 32-1154(F) for these items is appropriate. / / / / / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order in this matter, Respondent Desert Eagle Home Improvements LLC DBA: John Baker and Peter Baker’s License No. K-34.254542- D shall be placed on a finite disciplinary suspension for a period of seven calendar days as a penalty for Respondent’s statutory violations with respect to CWO Items #6, #7, #10, #17 (pool pump only), #24, #25, #27, #28, #29, #30, #32, #33, #34, #35, #36, and #37. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar shall revoke Respondent’s 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 Respondent tenders payment of any outstanding prior civil penalty. It is further recommended that, in addition to any license suspension that may result from this matter, Respondent’s Class K-34 license be placed on disciplinary probation for a period of 180 days, commencing on the effective date of the Registrar’s order or the date on which the disciplinary suspension is lifted from Respondent’s license, whichever is later. It is further recommended, in addition to the above penalties, that any continuation or restoration of Respondent’s contracting rights, 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 twelve 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 twelve-month period and only if no claims are then pending. If Respondent fails to post the additional required surety bond/deposit on or before the effective date of this Order, Respondent’s K- 34.254542-D License shall be suspended until such bond or deposit is posted. 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, November 8, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Complainant’s Exhibit 3 at 1. [2] See Complainant’s Exhibit 3 at 2. The total amount of Kevens’ proposal for various repairs was $20,377.28. [3] Complainant’s Exhibit 3 at 7. [4] See Complainant’s Exhibit 3 at 2. [5] Complainant’s Exhibit 3 at 8. [6] See Complainant’s Exhibits 10A and 10B. [7] See Complainant’s Exhibit 3 at 6. [8] See Complainant’s Exhibits 24A, 24B, 25A, and 25B. [9] See Complainant’s Exhibit 3 at 2. [10] See Complainant’s Exhibit 3 at 2. [11] See Complainant’s Exhibits 30A, 30B, and 30C. [12] See Complainant’s Exhibit 3 at 5. [13] See Complainant’s Exhibits 32A, 32B, 32C, 32D, 32E, and 32F. [14] See Complainants’ Exhibits 34A, 34B, 34C, 34D, 34E, 34F, 34G, 34H, 34I, and 34J. [15] See Complainants’ Exhibit 3 at 1. [16] Complainants’ Exhibit 3 at 4. [17] See Complainants’ Exhibits 36A and 36B. [18] Complainant submitted photographs of the significant damage to the cactus. See Complainant’s Exhibits 37A, 37B, 37C, 37D, 37E, and 37F. [19] See Complainant’s Exhibit 3 at 1. [20] See A.R.S. §§ 32-1151 to 32-1169. [21] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [22] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [23] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [24] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 a written directive from the registrar.” [25] See, e.g., County of Maricopa v. Walsh & Oberg Architects, Inc., 16 Ariz. App. 439, 441, 494 P.2d 44, 46 (1972) (quoting Restatement of Contracts § 346(1) (1932)).

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