ALJDEC decisions subject to certification as final

2012A-3525-ROC · Registrar of Contractors · 2013-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2013, at 8:00 a.m. APPEARANCES: Gail Vikse (hereinafter “Complainant”) appeared on her own behalf. Ocotillo Landscaping and Irrigation Repair LLC (hereinafter “Ocotillo”) appeared through its Qualifying Party, Brandon Scott Woodford.

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. Ocotillo is the holder of License No. C-21.216497-R issued by the Registrar of Contractors. 2. This is a residential matter where Ocotillo performed landscaping and related irrigation work at Complainant’s residence located at 9841 E. Sunridge Drive, Sun Lakes, Arizona. 3. Complainant was dissatisfied with Ocotillo’s workmanship and filed a formal Complaint against Ocotillo with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Randy Cason (hereinafter “Inspector Cason”), conducted an onsite inspection. Inspector Cason issued a written Corrective Work Order on August 8, 2012, directing Ocotillo to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Complaint #1A- Plants are alive and appear to be growing. No action required by Respondent.

Complaint #1B- Had Complainant turn on drip system, it does appear that certain drip lines have less water coming out of the drip heads than others, did find a few drip lines that had hardly any water coming out of them. The Respondent is to correct by appropriate means.

Complainant #2-Trees and plants are alive and appear to be growing. No action is required by the Respondent.

Complaint #3- Verified; found part of the original drip lines cut but still buried in the ground in the back yard. The Respondent is to correct by appropriate means.

Complaint #4- The Respondent is to comply with the contract specifications on the number of drip lines that are to be run to supply water to the Bottle Bush.

Complaint #5- Trees and plants are alive and appear to be growing. No action is required by the Respondent.

Complaint #6- This Inspector was not able to determine if there is a leak or not[;] however it does appear that certain drip lines have less water coming out of the drip heads than others, did find a few lines that had hardly any water coming out of them. The Respondent is to correct by appropriate means.

Complaint #7- Complainant had stated that she has been watering this tree by hand, tree is alive. Respondent needs to correct the amount of water running to this tree; it appears that this line is not working as intended to. The Respondent is to correct by appropriate means.

Complaint #8- This is not a complaint but is a statement by the Complainant. No action is required by the Respondent. Complaint #9A- Found that not all the drip lines have the same amount of water going to the trees and plants as other drip lines did in this system. The Respondent is to correct by appropriate means.

Complaint #9B- Checked valves: they appear to be new valves and did not find any leaks around the 3 valves. No action required by the Respondent.

Addendum complaint item #1- As stated in complaint #3; did find part of the original drip line system in the backyard. The Respondent is to correct/complete this issue as stated in the contract/verbal agreement by appropriate means.

Addendum complaint item #2- As stated in complaint #6; was not able to determine if there are leaks [or] not[;] however it does appear that certain drip lines have less water coming out of the drip heads than others did find a few lines that had hardly any water coming out of them. The Respondent is to correct by appropriate means.

Addendum complaint item #3- As stated in complaint #4; The Respondent is to comply with the contract specifications and verbal agreements made between parties on the number of lines that are to be run to supply water to miniature Bottle bush and plants.

Addendum complaint item #4- The Respondent is to comply with the contract specifications and verbal agreements made between parties on the installation of the new drip line system.

Addendum complaint item #5- As stated previously in this complaint, the trees and plants are alive and appear to be growing at the time of this inspection. No action is required by the Respondent.

6. Complainant filed a formal addendum to her complaint and Inspector Cason performed a second onsite inspection at her residence. Inspector Cason found that no action was required by Ocotillo on the items set forth in the formal addendum and no Corrective Work Order was issued regarding the additional items set forth in the formal complaint addendum. 7. Inspector Cason testified that he performed a pre-hearing inspection at Complainant’s residence on March 8, 2013. Inspector Cason stated that he observed that there was extensive digging taking place and that several plants had been removed. Inspector Cason testified that he observed that Ocotillo’s construction work had been modified by another contractor. Inspector Cason stated that he reviewed the corrective work items set forth in the Corrective Work Order. Inspector Cason opined that Ocotillo had fully complied with the terms of the Corrective Work Order.[1] 8. Inspector Cason’s testimony is found to be credible. 9. Complaint testified that Ocotillo did not perform or complete the corrective work as promised. Complainant stated that the poor landscaping and irrigation work performed by Ocotillo had severely damaged her residence. Complainant testified that she felt that Ocotillo had purposefully damaged her landscaping. Complainant stated that she feels that Ocotillo’s Qualifying Party, Brandon Scott Woodford (hereinafter “Mr. Woodford”), had conspired with her neighbor against her. Complainant stated that her neighbor had a history of vandalizing her yard. Complainant stated that the drip system installed by Ocotillo still has major leaks. Complainant testified that she has received a complaint from her homeowner’s association about the “massive leak” in her yard.[2] 10. Mr. Woodford testified that he recommended that Complainant file a complaint with the Registrar of Contractors when he was unable to resolve Complainant’s numerous complaints about Ocotillo’s construction work. Mr. Woodford stated that Ocotillo fully complied with the terms of the Corrective Work Order. Mr. Woodford testified that the drip system installed by Ocotillo does not leak. Mr. Woodford denied that he had engaged in a conspiracy against Complainant. Mr. Woodford stated that Ocotillo did not sabotage Complainant’s landscaping.[3] 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. Portions of Ocotillo’s construction work have been modified by another contractor.[4] Credible testimony and evidence established that Ocotillo fully complied with the terms of the Corrective Work Order issued in this matter. Because construction work is not a perfect art, generally contractors must be allowed to correct their work before their licenses are disciplined as a result of poor workmanship. Therefore, this Tribunal concludes that Complainant failed to meet her burden to prove that Ocotillo violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108,[5] and A.R.S. § 32-1154(A)(23).[6] RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the final Order in this matter, this Citation, together with the Complaint that it is based upon, shall be dismissed. 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, March 27, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 3/11/13 Hearing Record (hereinafter “H.R.”) at 7:26-36:29. [2] H.R. at 36:50(1:30:28. [3] H.R. at 1:30:43-1:39:40. [4] A.R.S. § 32-1155(C) provides, in pertinent part, as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use.

[5] 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.

[6] 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.

-----------------------

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