ALJDEC decisions subject to certification as final

2013A-1389-ROC · Registrar of Contractors · 2013-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 1, 2013, at 8:00 a.m. APPEARANCES: Harold Black (hereinafter “Dr. Black” or “Complainant”) was represented by his attorney, Eric Hawkins, Esq. Law Offices of Durrazzo, Eckel & Hawkins. Beyond Brick Tucson Inc. (hereinafter “Beyond Brick Tucson” or “Respondent”) was represented by its attorney, Joel L. Herz, Esq. Law Offices of Joel L. Herz. 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 Beyond Brick Tucson is the holder of License No. KB-2.281336-D issued by the Registrar of Contractors. This is a residential matter where on or about June 17, 2012, Dr. Black entered into a construction agreement with Beyond Brick Tucson for the installation of approximately 5400 squire feet of concrete pavers, gravel extension, and decorative rock border at Dr. Black’s residence. The parties entered into a contract change order on or about October 3, 2012, for the performance of additional construction work at Dr. Black’s residence. Dr. Black was dissatisfied with the color of the granite gravel installed by Beyond Brick Tucson and Beyond Brick Tucson’s business practices. When the parties where unable to resolve their differences, Dr. Black filed a formal Complaint against Beyond Brick Tucson 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 investigation of Dr. Black’s Complaint or about April 25, 2013. Inspector Nieves issued a letter on April 26, 2013, that provided in relevant part as follows: I could not determine the extent of the [Contractor’s] responsibility as the [Complainant] signed and accepted the gravel color as Grande Rose. I lack jurisdiction on the amount the [Complainant] feels he was overcharged.

Dr. Black filed an addendum to his Complaint and Inspector Nieves conducted a second investigation of the Complaint and addendum. On July 18, 2013, Inspector Nieves issued a second letter that provided in relevant part as follows: I lack jurisdiction on the amount the [Complainant] feels he was overcharged and on the lien [placed] by the [Respondent].

Dr. Black disagreed with Inspector Nieves’ determination and requested an administrative hearing. On August 8, 2013, the Registrar of Contractors issued a Citation and Complaint charging Beyond Brick Tucson 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. § 32-1124(B),[4] A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158,[5] and A.R.S. § 32-1154(A)(15).[6] Testimony of Inspector Mike Nieves Inspector Nieves testified that he conducted an onsite inspection at Dr. Black’s residence on April 25, 2013. Inspector Nieves stated that he observed no workmanship violations by Beyond Brick Tucson and declined to issue a citation against Beyond Brick Tucson’s contractor’s license. Inspector Nieves testified that Dr. Black filed an addendum to his Complaint on or about June 28, 2013. Inspector Nieves stated that he found no violations by Beyond Brick Tucson and again declined to issue a citation. Inspector Nieves testified that Dr. Black signed and accepted the gravel color as Grande Rose. Inspector Nieves stated that Grande Rose gravel was then installed at Dr. Black’s residence. Inspector Nieves testified that the gravel installed by Beyond Brick Tucson was installed in a workmanlike manner. Inspector Nieves testified that he lacked jurisdiction regarding Dr. Black’s assertion that Beyond Brick Tucson had overcharged him for the construction work performed by Beyond Brick Tucson. Inspector Nieves stated that he lacked jurisdiction regarding the lien allegedly filed by Beyond Brick Tucson on Dr. Black’s residence. Inspector Nieves’ testimony is found to be credible. Testimony of Dr. Harold Black, DDS Dr. Black testified that he is a dentist. Dr. Black stated that he was dissatisfied with the color of the gravel installed at his residence by Beyond Brick Tucson. Dr. Black testified that the gravel installed by Beyond Brick Tucson was a pinkish color and did not match the existing gravel that was at his residence. Dr. Black stated that the gravel installed by Beyond Brick Tucson was too thin in several areas on the driveway. Dr. Black acknowledged that he selected “Grande Rose” for the color of gravel to be installed at his residence. Dr. Black testified that the pinkish color of the Grande Rose gravel did not become apparent until it rained. Dr. Black stated that he expected the Grande Rose gravel to match his existing gravel perfectly. Dr. Black testified that Natan Ben Shabat (hereinafter “Mr. Shabat”) provided him with a business card showing that Mr. Shabat was the owner of “Beyond Brick.”[7] Dr. Black testified that Mr. Shabat represented that Beyond Brick Tucson had been performing construction work in the Tucson area since 2007. Dr. Black testified that the name utilized by Beyond Brick Tucson on Beyond Brick Tucson’s June 17, 2012 proposal for the construction work at issue was Beyond Brick Beyond Your Expectations.[8] Testimony of Daniel Lopez Daniel Lopez (hereinafter “Mr. Lopez”) testified that he had previously been an employee of Beyond Brick Tucson. Mr. Lopez stated that he picked up and delivered the Granite Rose gravel to Dr. Black’s residence. Mr. Lopez testified that Dr. Black was present when he delivered the Grande Rose gravel to Dr. Black’s residence. Mr. Lopez stated that Dr. Black made no objections regarding the color of the Grande Rose gravel when it was delivered and unloaded. Mr. Lopez testified that he would not have unloaded the Grande Rose gravel if Dr. Black had made any objection about its color. Mr. Lopez’s testimony is found to be credible. Testimony of Oded “Eddie” Lamdan Oded “Eddie” Lamdan (hereinafter “Mr. Lamdan”) testified that he is the qualifying party for Tucson Professional Landscaping Inc.[9] Mr. Lamdan testified that he performed an onsite inspection at Dr. Black’s residence. Mr. Lamdan opined that the Grande Rose gravel installed by Beyond Brick Tucson was installed in a professional and workmanlike manner. Testimony of Scott Anderson Scott Anderson (hereinafter “Mr. Anderson”) testified that he is the district manager for Pioneer Landscaping Materials (hereinafter “Pioneer”). Mr. Anderson stated that Pioneer was the material supplier for the gravel installed at Dr. Black’s residence. Mr. Anderson testified that Pioneer sold Desert Rose gravel to Beyond Brick Tucson.[10] Mr. Anderson testified that he performed an onsite inspection at Dr. Black’s residence. Mr. Anderson stated that he observed no workmanship issues. Administrative notice is taken of Beyond Brick Tucson’s prior license record as reflected on the Registrar of Contractors’ public website on November 18, 2013. Such prior license record reflects that License No. KB- 2.281336-D of Beyond Brick Tucson is current. 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. Dr. Black selected Grande Rose gravel to be installed at his residence. Beyond Brick Tucson installed Grande Rose gravel at Dr. Black’s residence. The Grande Rose gravel was installed in a professional and workmanlike manner. This Tribunal concludes that Dr. Black failed to meet his burden of proving by a preponderance of the evidence that Beyond Brick Tucson violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 4. Beyond Brick Tucson’s written proposal and Beyond Brick Tucson’s October 3, 2012 contract change order[11] for the construction project at Dr. Black’s residence do not display Beyond Brick Tucson’s contractor’s license number preceded by the acronym “ROC.” This Tribunal concludes that Beyond Brick Tucson violated the charged provision of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B). 5. Throughout the entire transaction, all of Dr. Black’s personal contacts were with Beyond Brick Tucson’s qualifying party, Natan Ben Shabat (hereinafter “Mr. Shabat”). Mr. Shabat presented Dr. Black with a business card that identified Mr. Shabat as the owner of “Beyond Brick.” The written proposal provided to Dr. Black by Mr. Shabat does not contain Beyond Brick Tucson’s name as set forth on License No. KB-2.281336-D of Beyond Brick Tucson and does not provide that the property owner has the right to file a written complaint with the registrar for an alleged violation of A.R.S. § 32-1154(A), does not contain the Registrar's telephone number and website address, and does not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155(A). This Tribunal concludes that Beyond Brick Tucson violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32- 1158(B). 6. Mr. Shabat presented Dr. Black with a business card that identified Mr. Shabat as the owner of “Beyond Brick.” The written proposal provided to Dr. Black by Mr. Shabat identified the name of the contractor for the construction project as being Beyond Brick Beyond Your Expectations. Beyond Brick is not the name set forth on License No. KB-2.281336-D of Beyond Brick Tucson. Beyond Brick Beyond Your Expectations is not the name set forth on License No. KB-2.281336-D of Beyond Brick Tucson. This Tribunal concludes that Beyond Brick Tucson violated the charged provision of A.R.S. § 32-1154(A)(15). RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the final Order, License No. KB-2.281336-D of Beyond Brick Tucson shall be suspended until the Registrar of Contractors receives and accepts written proof that Beyond Brick Tucson has brought all of its business cards, business forms, and contracts into full compliance with the provisions of A.R.S. § 32-1124(B), A.R.S. § 32- 1154(A)(15), and A.R.S. § 32-1158. It is further recommended that if on or before the effective date of this Order, Beyond Brick Tucson fully accomplishes the above-described corrective actions, then the above-provided License suspension shall not take place and this matter shall be closed. 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, November 19, 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 suspension, revocation, or other 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. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[5] A.R.S. § 32-1158 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. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction 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.

[6] A.R.S. § 32-1154(A)(15) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license. [7] See Exhibit C-1 (Copy of business card). [8] See Exhibit C-5 (June 17, 2012 Proposal by Beyond Brick Beyond Your Expectations). [9] License No. C-21.201413-R. [10] See Exhibit C-14 ((10/02/12 Sales Invoice). [11] See Exhibit C-12 (10/3/12 Change Order).

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