ALJDEC decisions subject to certification as final

2013A-4397-ROC · Registrar of Contractors · 2013-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2013, at 8:00 a.m. APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Michael Raine, Esq. Bennett Alan Astenius dba Man of the Soil Landscaping (hereinafter “Man of the Soil”) was represented by Michael A. Fleishman, Esq., Fleishman Law, P.L.C. 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 Man of the Soil is the holder of License No. C-21.108391-R issued by the Registrar of Contractors.[1] On or about September 15, 2011, Man of the Soil entered into a written contract with Amber Winter (hereinafter “Ms. Winter” or “homeowner”) and Jason Toumey (hereinafter “Mr. Toumey” or “homeowner”) to perform landscaping work, which included the construction of a ramada at their residence at 9977 E. Emily Dr., Tucson, Arizona, for the sum of $10,422.20.

On or about September 15, 2011, Man of the Soil and the homeowners entered into a second written contract that amended their first written contract to eliminate the construction of the ramada and reducing the cost of the construction project to $6,857.24. The homeowners were dissatisfied with Man of the Soil’s workmanship and requested that Man of the Soil properly correct its workmanship on their residence. Man of the Soil ceased work on the construction project and refused to return to the homeowners’ residence to complete the construction project. The homeowners then filed a formal Complaint against Man of the Soil 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 February 5, 2013. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means:

1. POOR INSTALL OF SYNTHETIC GRASS/SWITCH OF PRODUCT AFTER APPROVAL: Grass not properly secured and loose.

2. NO “PET SYSTEM [“] INSTALLED WITH GRASS TO REDUCE PET URINE: No drain core installed under Pet Turf.

3. DUG UP FOOTERS OF BRICK WALL, WHICH IS NOW CRACKING: Footing has been cut on eastside block wall to install plants, causing block wall to crack.

5. PROJECT STILL NOT COMPLETE: Project needs to be completed per contract.

6. IRRIGATION SYSTEM IMPROPERLY INSTALLED: System has several leaks and timer not functioning correctly.

9. POOR DRAINAGE OF YARD: Water drains to area between sidewalk and turf.

10. GARBAGE LEFT IN BACK ALLEY/EASEMENT OF HOMEOWNER: Debris was left in alley.

11. INCOMPLETE FLAGSTONE PATIO WORK: Flagstone needs to be completed on west side of porch area.

12. [SEVERELY] DAMAGED FOOTERS OF WALL WITH A JACKHAMMER: Footing has been cut on eastside block wall to install plants, causing block wall to crack.

14. INCOMPLETE ELECTRICAL WIRING FOR YARD LIGHTS/EXPOSED WIRES: Lights have not been installed and wiring is exposed.

Man of the Soil failed to comply with the terms of the Corrective Work Order and on October 3, 2013, the Registrar of Contractors issued a Citation and Complaint charging Man of the Soil with possible violations of A.R.S. § 32-1154(A)(1),[2] A.R.S. § 32-1154(A)(2),[3] A.R.S. § 32- 1154(A)(3),[4] namely, A.A.C. R4-9-108,[5] A.R.S. § 32-1154(A)(17),[6] and A.R.S. § 32-1154(A)(23).[7] Testimony of Registrar Inspector Mike Nieves Inspector Nieves testified that he found the construction project to be incomplete when he performed his onsite inspection. Inspector Nieves stated that he examined each item of the Complaint. Inspector Nieves testified that the landscaping work performed by Man of the Soil did not meet applicable workmanship standards. Inspector Nieves stated that Man of the Soil failed to install a drain core for the artificial grass as the per manufacturer’s specifications. Inspector Nieves testified that Man of the Soil contracted to perform and actually performed construction work that is beyond the scope of Man of the Soil’s License No. C-21.108391-R. Inspector Nieves stated that the installation of a ramada and the installation of a load-bearing concrete patio slab and walkways were not within the scope of Man of the Soil’s Class C-21 license. Inspector Nieves testified that the construction project was approximately 80% complete. Inspector Nieves stated that he observed several leaks in the irrigation system installed by Man of the Soil. Inspector Nieves testified that he observed several loose emitters. Inspector Nieves stated that the artificial grass installed by Man of the Soil was loose and presented a possible tripping hazard. Inspector Nieves testified that he observed construction debris from the construction project behind the homeowners’ residence. Inspector Nieves testified that no pre-hearing inspection was performed because Man of the Soil had performed no corrective work in response to the Corrective Work Order. Inspector Nieves’ testimony is found to be credible Testimony of Adam Stafford, Esq. Adam Stafford, Esq. (hereinafter “Mr. Stafford”) testified that he is the Assistant Chief for the Registrar of Contractors’ Legal Department. Mr. Stafford stated that he had personally reviewed the file for this matter. Mr. Stafford testified that Man of the Soil’s C-21 License does not permit construction of a ramada. Mr. Stafford stated that Man of the Soil performed construction work beyond the scope of its C-21 License by installing a concrete slab for a load-bearing patio and walkway. Mr. Stafford testified that Man of the Soil performed construction work beyond the scope of its Class C-21 license by chipping away parts of the footer for the homeowners’ block wall. Mr. Stafford stated that Man of the Soil’s C-21 License was only for landscaping. Mr. Stafford testified that Man of the Soil knowingly contracted beyond the scope of its License No. C-21.108391-R. Mr. Stafford stated that even if no construction work had actually been performed on the ramada, Man of the Soil’s written contract contained work that was beyond the scope of Man of the Soil’s C-21 License and constituted a violation of A.R.S. § 32- 1154(A)(17). Mr. Stafford’s testimony is found to be credible. Testimony of Amber Winter, EA Amber Winter, EA (hereinafter “Ms. Winter”) testified that she is an accountant. Ms. Winter stated that Man of the Soil had been one of her clients. Ms. Winter testified that her contract with Man of the Soil included a “trade for services” in that one-half of the value of the contract was supposed to offset money that Man of the Soil owed to Ms. Winter for her accounting services and the remaining one-half of the contract would be paid to Man of the Soil in cash. Ms. Winter testified that the ramada was removed from the original contract to reduce the cost of the construction project. Ms. Winter stated that she observed the installation of the artificial grass and noticed that Man of the Soil did not install the drain core. Ms. Winter testified that she has dogs and that the artificial grass with the drain core is one of the reasons she selected the type of artificial grass that was being installed. Ms. Winter testified that Man of the Soil installed a different type of artificial grass than the homeowners had selected. Ms. Winter stated that she was very unhappy with the artificial grass installed by Man of the Soil. Ms. Winter acknowledged that she agreed to the installation of the type of artificial grass that Man of the Soil installed. Ms. Winter testified that she only agreed to the installation of the type of artificial grass installed by Man of the Soil because Man of the Soil’s owner represented that it was better quality artificial grass than the type of artificial grass selected by the homeowners. Ms. Winter testified that she personally observed Man of the Soil’s workers performing “jackhammer” work on the footers for her block wall. Ms. Winter stated that Man of the Soil caused cracking in her block wall. Ms. Winter testified that Man of the Soil constructed an 8’ x 8’ concrete slab for her patio. Ms. Winter stated that Man of the Soil failed to install agreed upon flagstone on the concrete patio slab. Ms. Winter testified that the artificial grass was loose and that the irrigation system installed by Man of the Soil leaked. Ms. Winter stated that the smell of pet urine in her yard was intense because Man of the Soil had failed to install a required drain core for the artificial grass. Ms. Winter testified that she feels that the entire landscaping project needs to be removed and redone. Ms. Winter testified that the last time Man of the Soil requested access to her residence, Man of the Soil was approximately 3½ hours late and she had to go to a volleyball game. Ms. Winter stated that she asked Man of the Soil to return on a different date. Ms. Winter testified that Man of the Soil never returned to her residence. Ms. Winter testified that she had never denied Man of the Soil access to her residence. Ms. Winter denied that her dogs had caused any damage to the landscaping installed by Man of the Soil. Ms. Winter denied that she had made any threats against Man of the Soil or any of its employees. Ms. Winter’s testimony is found to be credible. Testimony of Bennett Alan Astenius Bennett Alan Astenius (hereinafter “Mr. Astenius”) testified that he is the owner and qualifying party for Man of the Soil. Mr. Astenius stated that all work performed at Ms. Winter’s residence was performed in accordance with applicable workmanship standards. Mr. Astenius asserted that Ms. Winter’s dogs had damaged Man of the Soil’s landscaping work after it was completed. Mr. Astenius acknowledged that Man of the Soil had not installed a drain core for the artificial grass installed at the homeowners’ residence. Mr. Astenius testified that he had approximately 40 years of landscaping experience and that he uses a deodorizer that is better than a drain core. Mr. Astenius stated that he never installs drain cores for the artificial grass that is installed by Man of the Soil. Mr. Astenius acknowledged that the artificial grass actually installed at the homeowners’ residence was not the artificial grass originally selected by the homeowners. Mr. Astenius testified that the artificial grass that was installed was an upgraded grass that was accepted by the homeowners. Mr. Astenius stated that the artificial grass that was installed was better than the artificial grass initially selected by the homeowners. Mr. Astenius denied that Man of the Soil had performed any work that was beyond the scope of its C-21 License. Mr. Astenius testified that Man of the Soil did not actually construct a ramada for the homeowners. Mr. Astenius stated that the ramada was intended to be simply a “shade structure.” Mr. Astenius stated that the homeowners’ block wall was not a retaining wall and that the work performed by Man of the Soil was simply chipping away excess concrete from the block wall. Mr. Astenius testified that Man of the Soil did not cause the cracking in the homeowners’ block wall. Mr. Astenius testified that Man of the Soil never agreed to install flagstone on the homeowner’s concrete patio. Mr. Astenius stated that Man of the Soil did not leave any construction debris on the homeowners’ property. Mr. Astenius acknowledged that Man of the Soil did not perform any corrective work at the homeowners’ residence in response to the Corrective Work Order. Mr. Astenius testified that he did not agree with the terms of the Corrective Work Order and that he believed that Ms. Winter had made threats against Man of the Soil and its employees that created an unsafe work environment for Man of the Soil. Administrative notice is taken of Man of the Soil’s prior license record as reflected on the Registrar of Contractors’ public website on December 17, 2013. Such prior license record reflects that License C-21.108391-R of Man of the Soil is current. License C-21.108391-R of Man of the Soil was suspended for lack of bond from November 3, 2001, through May 15, 2002. 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. Man of the Soil abandoned the homeowners’ construction project without legal excuse and refused to return to perform corrective work as directed by the Corrective Work Order. This Tribunal concludes that Man of the Soil violated the charged provision of A.R.S. § 32-1154(A)(1). 4. Man of the Soil departed from or disregarded plans and specifications by failing to install a drain core for the artificial grass installed at the homeowners’ residence. This Tribunal concludes that Man of the Soil violated the charged provision of A.R.S. § 32-1154(A)(2). 5. The artificial grass installed by Man of the Soil is loose and presents a tripping hazard and the irrigation system installed by Man of the Soil is leaking. Man of the Soil caused cracking in the homeowners’ block wall by performing jackhammer work on the footer for the block wall. The construction project is still incomplete and requires correction. This Tribunal concludes that Man of the Soil violated the charge provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. 6. Man of the Soil knowingly contracted to construct a ramada and to install a load-bearing concrete slab and walkways that are beyond the scope of Man of the Soil’s License No. C-21.108391-R. This Tribunal concludes that Man of the Soil violated the charged provision of A.R.S. § 32-1154(A)(17). 7. Man of the Soil failed to perform any of the directed corrective work on the homeowners’ residence as directed by the Corrective Work Order. There was no credible evidence of any denial of access. This Tribunal concludes that Man of the Soil violated the charged provision of A.R.S. § 32- 1154(A)(23). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. C-21.108391-R of Man of the Soil shall be suspended until the Registrar of Contractors receives and accepts written proof that Man of the Soil has fully complied with the terms of the written Corrective Work Order. It is further recommended that if on or before the effective date of this Order, Man of the Soil properly causes the full accomplishment of the above-described corrective action, then the above-provided License suspension shall not take place and, instead, License No. C-21.108391-R of Man of the Soil shall be placed on disciplinary probation for a period of ninety (90) days. It is further recommended, in addition to the above-provided penalties, if any, that Man of the Soil 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 Man of the Soil 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 Man of the Soil’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Man of the Soil, 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, December 19, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Pursuant to A.A.C. R4-9-103, a C-21 license allows a contractor to perform the following:

Treat, condition, prepare, and install topsoil. Plant all decorative vegetation. Excavate, trench, bore, backfill and grade as necessary for installation of landscaping and irrigation systems.

Landscaping includes installation of non-loadbearing slabs, walkways and areas using concrete, brick, stone, or gravel; wooden decks; decorative garden walls, fences and screens up to 6 feet in height; retaining walls up to 3 feet in height; and all other materials and equipment common to the industry. Excluded are cast-in-place or tilt concrete; load bearing walls for structures; and perimeter fencing along property lines or boundaries.

Install, repair, and maintain irrigation systems to distribute water for the purpose of irrigation, dust and soil erosion control using equipment, materials, and fittings common to the industry. This includes electrical control panels and apparatus which are an integral part of the irrigation system.

Connections to potable water lines, installation of backflow prevention devices, installation of hose bibs and installation of service lines from source of supply are permitted only when they are an integral part of the irrigation system.

Installation of electric wiring and related fixtures of 110 volts or less for landscaping projects is included. All electrical work is limited to exterior use and only that work necessary to complete a landscaping project.

If necessary, a new circuit may be added to the existing service panel or sub-panel. Excluded is the installation of a new service panel or sub-panel.

[2] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [3] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [4] 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. [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)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee. [7] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other 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.

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