ALJDEC decisions subject to certification as final

2013A-315-ROC · Registrar of Contractors · 2013-11-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2013 APPEARANCES: Complainant Patricia Kallof appeared on her own behalf. Respondent AZ Pavescapes LLC was represented by Rosemarie Pena-Lynch. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 21.225867-D to AZ Pavescapes LLC (“Respondent”). The Registrar received a Complaint against Respondent from Patricia Kallof (“Complainant”) regarding the installation of flagstone in her backyard at 7359 E. Norwood Street, Mesa, Arizona. Complainant cited the shape and size of the flagstone, the texture and appearance of the grout, and poor water drainage. After the Registrar assigned the Complaint to its inspector, Mark Alyea, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Alyea issued a Corrective Work Order in which he directed Respondent to correct “by appropriate means,” the following items: 1. The grout mixture that the contractor installed does not match the existing grout, the contractor used mortar sand, the existing grout was mixed with silica sand. 2. There are cement stains next to the grout lines on the new flagstone that that contractor installed. 3. At the southwest and southeast of the French drain, there is lippage at the new flagstone that the contractor installed, the flagstone is not flush. 4. One piece of flag stone [sic], west of the south table, the grout is cracked all the way around it. 5. The French drain is clogged up and needs to be cleaned out. 6. There is cement on the back yard planter walls. 7. There is loose flagstone around the patio column.

Complainant requested a hearing. 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 filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. Inspector Alyea testified he performed a pre-hearing inspection, at which he observed the only change in Complainant’s backyard was that the French drain had been replaced with another type of drain. A hearing was held on October 21, 2013. Inspector Alyea testified about the Registrar’s standards. Complainant submitted one exhibit and testified on her own behalf. Respondent submitted one exhibit and presented the testimony of Eladio Pena,[1] its Qualifying Party. Hearing Evidence On or about March 10, 2012, Complainant contracted with Respondent to deliver sand and concrete to prepare the lot for flagstone installation and to install approximately 580 square feet of flagstone to simulate the existing flagstone patio. Prior to installing the flagstone, Respondent discussed methods of water drainage with Complainant. Complainant decided to have a French drain installed despite Respondent’s advice to pursue a different option. While Respondent was not contracted to install a French drain, it appears from the evidence and testimony that Respondent installed the French drain as requested. During the installation of the flagstone, Respondent was instructed to leave a stone near a column loose to allow access to plumbing under the stone. Respondent “sand set” the stone at the time of installation to make it visually match the rest of the patio. Since the installation, it appears someone accessed the plumbing and the sand was displaced as a result. Respondent acknowledged that the grout used did not match the appearance of the existing grout and that there were some cement stains that needed to be cleaned on the flagstones and on the walls abutting the flagstone. Complainant conceded that following the Corrective Work Order, Respondent contacted her because it wanted to complete the corrective work that was ordered to be done. Complainant refused to allow Respondent to complete any corrective work because Mr. Pena was unwilling to explain to her how he intended to perform the corrective work, would not “make a plan” with her, and/or show her a sample of how the work would be done. Following the Corrective Work Order, Complainant hired a different company to remove the French drain and install a different drainage system. During the course of the work, the flagstone surrounding the French drain was removed and was not replaced when the new drain was installed. Complainant argued Respondent was responsible for replacing the flagstone around the new drain. Complainant stated she was unable to work with Mr. Pena and that she did not feel comfortable having him on her property. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. Undisputed credible testimony established that when Respondent installed the flagstone patio in Complainant’s backyard, the grout that was used did not match the existing grout, there was cement staining on some of the flagstone and walls, a flagstone was loose, and there was lippage around the French drain. Therefore, Complainant established Respondent’s work installing the flagstone patio was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[2] 4. A contractor must be afforded access and an opportunity to perform corrective work to comply with a Corrective Work Order before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(23).[3] 5. The credible testimony established that Complainant hired a different company to address her issues with the French drain. During that process, the flagstone was removed and was not replaced. As a result, Respondent was not afforded an opportunity to address the flagstone lippage around the French drain as directed in the Corrective Work Order. 6. As to the remaining issues identified in the Corrective Work Order, the credible testimony offered at hearing established Respondent was willing and able to complete the work required and that Complainant would not allow Respondent access to the property. Because Complainant did not allow access for Respondent to comply with the Corrective Work Order, she did not establish that Respondent violated A.R.S. § 32-1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent AZ Pavescapes LLC’s License No. K-21.225867-D until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Patricia Kallof’s Complaint in Case No. 2013-315. 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 12, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Registrar’s website indicates “Elaido” Pena is Respondent’s Qualifying Party. This appears to be a typographical error in light of the evidence and testimony presented at hearing. [2] 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.” [3] 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.” Emphasis added.

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