ALJDEC decisions subject to certification as final

2012A-2490-ROC · Registrar of Contractors · 2013-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2013, at 8:00 a.m. APPEARANCES: Sean and Claudia Good (hereinafter “Complainants”) appeared through Sean Good. Richard Milo Owens dba Canyon Oasis Custom Landscape and Design (hereinafter “Canyon,” “Mr. Owens,” or “respondent”) appeared on his own behalf. 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 Canyon is the holder of License No. C-21.263695-R issued by the Registrar of Contractors. This is a residential matter where Canyon performed landscaping and concrete work at Complainants’ residence at 3341 W. Coriander Dr., Tucson, Arizona. Complainants were dissatisfied with Canyon’s workmanship and demanded that Canyon properly correct its workmanship. When Canyon failed to comply with Complainants’ repeated demands that he satisfy their concerns, Complainants filed a formal Complaint against Canyon with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on December 14, 2012, directing Canyon to perform designated corrective work on Complainants’ residence. The Corrective Work Order provides, in relevant part, as follows: Contractor to correct the following by appropriate means:

1. Cracked concrete/grout on NW planter wall in two places outside of pool area: Wall does have 2 vertical cracks, need[s] to be properly corrected, stucco corrected and painted to match existing as close as possible. 2. Cracked concrete/grout on raised patio [is cracked] in five places outside of pool area: Front of slab does have 5 vertical cracks, need to be properly corrected, stucco corrected and painted to match existing as close as possible.

No action is required on the following:

3. Cracked concrete/grout on seating bench/planter area outside of pool area: Corrected by the respondent prior to the jobsite. 4. Missing grout in three places in seating area outside of pool area: Corrected by the respondent prior to the jobsite. 5. Wrong color grou[t] applied to walkway leading from raised patio area into swimming pool area in three places: Corrected by the respondent prior to the jobsite. 6. Cracked concrete/grout on planter wall between seating areas in pool seating area: Corrected by the respondent prior to the jobsite. 7. Cracked concrete/grout on planter wall in pool area: Corrected by the respondent prior to the jobsite.

The parties were unable to resolve their dispute and the Registrar of Contractors issued a Citation and Complaint charging Canyon with possible violations of A.R.S. § 32-1154(A)(3),[1] namely, A.A.C. R4-9-108,[2] A.R.S. § 32-1154(A)(13),[3] namely, A.R.S. § 32-1158(B)(1), (4), and (9),[4] and A.R.S. § 32-1154(A)(23).[5] Testimony of Inspector Nieves Inspector Nieves testified that he conducted a pre-hearing inspection at Complainants’ residence on August 7, 2013. Inspector Nieves stated that Canyon had attempted to repair the concrete cracks but that the concrete cracks had reappeared and increased in size. Inspector Nieves testified that the concrete cracks were in excess of applicable workmanship and industry standards. Inspector Nieves stated that Canyon had failed to comply with the terms of the Corrective Work Order. Inspector Nieves’ testimony is found to be credible. Testimony of Roger W. Good Roger W. Good (hereinafter “Mr. R. Good”) testified that he is Sean Good’s father. Mr. R. Good stated that he lives in the same area and is at Complainants’ residence regularly. Mr. R. Good testified that he was present for Inspector Nieves’ pre-hearing inspection. Mr. R. Good testified that he had observed the concrete cracking in Complainants’ yard. Mr. R. Good stated that he saw no evidence that the cracking was caused by tree roots. Mr. R. Good testified that he also observed raised bricks in Complainants’ patio area. Mr. R. Good stated that he could not observe the cause of the raised bricks. Mr. R. Good testified that he has similar concrete work in his yard. Mr. R. Good stated that he has experienced no concrete cracking in his yard. Testimony of Claudia Good Claudia Good (hereinafter “Ms. Good”) testified that both parties agreed to place the raised patio in front of an existing tree in Complainants’ yard. Ms. Good stated that she asked Richard Milo Owens (hereinafter “Mr. Owens”) if the existing tree would create a problem with the new concrete work. Ms. Good testified that Mr. Owens assured her that the existing tree would not be a problem. Ms. Good testified that there have been numerous occasions when Canyon failed to keep scheduled appointments to perform corrective work at Complainants’ residence. Ms. Good stated that this was a great inconvenience to Complainants because they would arrange to take time off from work to be available for the scheduled appointments. Ms. Good testified that Mr. Owens threatened that he would institute legal action against Complainants for alleged change orders if they persisted with their complaint against Canyon with the Registrar of Contractors. Ms. Good testified that the concrete cracking in Complainants’ yard began shortly after the concrete was installed. Ms. Good stated that Canyon relocated the sprinkler heads of Complainants’ sprinkler system as part of Canyon’s construction work in Complainants’ back yard. Ms. Good testified that Canyon provided Complainants with a preliminary sketch of the landscaping work that Canyon would be performing at Complainants’ residence before Complainants entered into a construction contract with Canyon.[6] Ms. Good testified that the preliminary sketch prepared by Canyon established that Canyon was fully aware of that there was a large tree in Complainants’ backyard and that sod would be installed in Complainants’ backyard before Canyon submitted its construction proposal to Complainants.[7] Testimony of Richard Milo Owens Mr. Owens testified that he is the owner and qualifying party for Canyon. Mr. Owens testified that every time Canyon had attempted to repair the cracks in Complainants’ concrete, the cracks reappeared. Mr. Owens stated that the concrete slab in Complainants’ yard had a six inch footer and that he believed that tree roots could be causing the concrete slab to crack. Mr. Owens testified that he had informed Complainants that placing the raised concrete area in front of an existing tree could cause cracking problems with the concrete. Mr. Owens testified that the type of ash tree in Complainant’s yard grows “vigorously.” Mr. Owens stated that the tree had created the cracking problems with the concrete work installed in Complainants’ yard. Mr. Owens testified that he had performed corrective work at Complainants’ residence at least nine times before the Complaint was filed. Mr. Owens stated that roots from the tree had also caused “heaving” in Complainants’ brick patio. Mr. Owens testified that he informed Complainants that there would be concrete cracking. Mr. Owens stated that the concrete cracking was a homeowner maintenance problem. Mr. Owens testified that he did not believe that he could satisfy Complainants. Mr. Owens acknowledged that he was aware of the existence of the ash tree in Complainants’ yard during the design phase of the contract. Mr. Owens acknowledged that he assured Complainants that the ash tree would not be a problem. Mr. Owens testified that Canyon installed extra concrete in the footers and the concrete cells in an effort to prevent cracking. Mr. Owens stated that it “was always a shot in the dark” predicting what tree roots would do. Testimony of Sean Good Sean Good (hereinafter “Mr. Good”) acknowledged that Canyon had attempted to repair the concrete cracking at his residence at least six times. Mr. Good acknowledged that Canyon requested the removal of the tree from Complainant’s yard. Mr. Good testified that he refused to remove the tree from his yard. Mr. Good testified that he had observed no evidence that the tree was causing the concrete cracking. Mr. Good stated that the concrete cracking was caused by Canyon’s failure to install adequate footings for the concrete. Mr. Good testified that Mr. Owens had promised Complainants that there would be a five-year warranty for the construction work performed by Canyon. Mr. Good acknowledged that the five-year warranty was not set forth in the parties’ written agreement. Mr. Good testified that there were “many, many times” when Canyon would schedule corrective work and fail to show up. Mr. Good stated that Mr. Owens knew that the concrete cracking at Complainants’ residence was getting worse and failed to do anything to resolve the concrete cracking.

Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on August 30, 2013. Such prior license record reflects that License No. C-21.263695-R of Canyon was suspended for lack of bond on March 22, 2013. License No. C- 21.263695-R of Canyon was placed on finite suspension from June 29, 2013, through September 17, 2013, and after the finite suspension is completed, License No. C-21.263695-R of Canyon will be placed on probation from September 18, 2013, through March 17, 2014. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The planter wall has vertical cracks that fail to comply with applicable workmanship standards. The front of the concrete slab has several vertical concrete cracks that exceed applicable workmanship and industry standards. This Tribunal concludes that Canyon violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 4. Canyon’s August 8, 2011 Proposal/Contract[8] and Canyon’s November 15, 2011 Proposal[9] did not display Canyon’s license number, did not provide an estimated date for the completion of all work to be performed, and did not inform Complainants that they had a right to file a Complaint with the Registrar of Contractors for an alleged violation of A.R.S. § 32- 1154(A). This Tribunal concludes that Canyon violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158(B)(1), (4), and (9). 5. The concrete cracking in Complainants’ yard fails to comply with applicable industry and workmanship standards. The concrete cracking has not been adequately corrected by Canyon despite repeated opportunities to do so. Canyon failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that Canyon violated the charged provision of A.R.S. § 32-1154(A)(23). RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 21.263695-R of Canyon shall be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Canyon pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Canyon 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 Canyon’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Canyon, as defined in A.R.S. § 32-1101(A)(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, August 30, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [2] A.A.C. R4-9-108 provides, in pertinent part, as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[3] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [4] A.R.S. § 32-1158(B) provides, in pertinent part, as follows: B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 4. The estimated date of completion of all work to be performed under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

[5] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, 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 a 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 a violation of this paragraph until after a hearing has been held. [6] See Exhibit C-11 (Preliminary sketch). [7] See Exhibit C-12 (8/8/11 Proposal/Contract). [8] See Exhibit C-12 (8/8/11 Proposal/Contract). [9] See Exhibit C-10 (11/16/11 Proposal).

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