ALJDEC decisions subject to certification as final

2014A-1279-ROC · Registrar of Contractors · 2015-10-27

HEARING: October 15, 2015 APPEARANCES: Roy Martinez appeared on his own behalf. C Landscaping and Irrigation, Inc. was represented by its owner, qualifying party and authorized representative, Edder Montes (Montes). ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant Roy Martinez (Martinez) is the owner/occupant of a residence located at 15231 North 21st Street, Phoenix, Arizona 85022. 2. Respondent C. Landscaping and Irrigation, Inc. holds Arizona Contractor’s License No. CR21.213030-D. 3. Complainant and Respondent signed a contract on February 25, 2014, specifying that Respondent would landscape Complainant’s yard and provide the necessary materials, equipment and labor to do so. The contract indicated that “Project completion date as agreed by Mr. Roy Martinez and C Landscaping and Irrigation is expected to be no later than March 10, 2014.” The contract also provided All of the above work shall be completed in a professional workman like manner according to local codes and ordinances for the sum of: $8,000.00. A deposit of $4,000.00 was paid on February 25th 2014. The remaining balance of $4,000.00 is to be paid when the project is complete.

4. Respondent began work on the project but only worked through March 3, 2014. Respondent also brought materials to the project on March 13, 2014. When Respondent continued to work after that date, it requested more money for work Complainant believed was unauthorized. Complainant refused to provide additional monies beyond what had been agreed upon in writing. He testified that Montes’ became angry with him at that point, and threatened to put a lien on his house. Complainant testified that by March 21, 2014, he no longer felt comfortable having Respondent perform work on his property. 5. On that date, Martinez filed a complaint with the Registrar of Contractors (Registrar) alleging that Respondent had not completed its contractually agreed-upon work, had demanded more money for unauthorized work, threatened to place a lien on his home if additional money was not provided, performed work in untimely matter, and that “some of the work was questionable.” 6. Regarding any demand for additional monies, the parties agreed at hearing that the Respondent agreed to forgo these costs and perform the work for the previously agreed-upon amount via an email dated March 27, 2014. 7. Martinez said that on April 21, 2014, before the Registrar arranged an inspection, he received a warning from the city of Phoenix to remove the dirt piles from the front of his home. The following day, Respondent made him a settlement offer. On May 7, 2014, Respondent requested Martinez grant it access to his residence. Martinez declined to grant Respondent access to his home because Respondent gave him no guarantees and only anticipated finishing its work by May 31, 2014. In addition, Complainant set limits on the days and times that Respondent could be on his property to do the work. Complainant did indicate, however, that once the Registrar completed its investigation of his complaint, he would abide by the Registrar’s timeline. 8. The Registrar assigned investigator Steve Klein to investigate the complaint. Klein testified that he arranged to perform an inspection on July 23, 2014, and notified the Complainant and the Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Klein indicated that at the time of an inspection, he substantiated Complainant’s main complaint that the job was not complete. He also documented that there was damage to Complainant’s house in the form of a chip, the blocks on the block wall were not thick enough, as well as sprinkler issues and issues with the corner wall. 9. On August 6, 2014, Respondent made arrangements to come to Complainant’s property and take inventory. At that time, Lorena Carrillo, secretary to Montes, testified that the parties verbally agreed to settlement terms. Carrillo indicated however that when she attempted to return with Montes and have Complainant sign a written agreement, Complainant refused to sign because he wanted the money in hand. 10. On August 14, 2014, Klein sent Respondent a Directive from the Registrar. The Directive stated in pertinent part that: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes, and manufacturer’s installation instructions.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

11. Complainant did not hear from Respondent until August 22, 2014, when Respondent made Complainant another settlement offer. Complainant told Respondent that he wanted the company to comply with the directive as written. When Respondent told Complainant at that point that it planned to begin work on August 30, 2014, and be finished in three weeks, Complainant declined and said that the directive indicated that Respondent had to be finished by September 1, 2014. 12. Notwithstanding the expiration of the time limit in the directive, the parties continue to negotiate. It is undisputed that Respondent never returned to the home to complete Complainant’s landscaping job. 13. For that reason, when Klein returned to the residence to perform a compliance inspection on December 3, 2014, he found that nothing had changed. 14. On June 8, 2015, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[a] violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “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.” The Citation did not charge Respondent with abandonment of the project as specified in A.R.S. § 32- 1154(A)(1) or with the failure to comply with building codes as set forth in. A.R.S. § 32-1154(A)(2).[1] 15. In October 2015, Klein return to the residence and found that everything remained the same. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The undersigned finds that Respondent’s failure to complete the work is not a workmanship issue and instead is more properly characterized as either an abandonment or failure to comply with a building code. 4. Undisputed credible testimony established that when Respondent installed the performed work it chipped a wall, used blocks in a block wall that were not thick enough and left both the sprinklers and corner wall with issues. 5. Thus, Complainant established Respondent’s work regarding the chip on the house, block wall, corner wall and sprinklers 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] 6. Complainant has not established a violation of A.R.S. § 32- 1154(A)(22). Carrillo gave credible evidence as to how restrictions on access to Complainant’s house and the parties’ ongoing settlement negotiations prevented Respondent from complying with the directive in the timeframe contained therein. A contractor must be afforded access and an opportunity to perform corrective work to comply with a directive from the Registrar before the Registrar disciplines the contractor’s license for a violation of A.R.S. § 32-1154(A)(22).[3] In this case, the Tribunal finds that Respondent had a valid justification for not complying with the directive, namely that Respondent and Complainant could not agree regarding access to the residence and so Respondent was pursuing settlement negotiations instead. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent C Landscaping and Irrigation Inc.’s License No. CR21.213030-D for a period of one (1) day. 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, October 27, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Those provisions state:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. 2. 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. [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)(22) 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.

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

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