PDF copy: ALJDEC decisions subject to certification as final

2014A-2833-ROC · Registrar of Contractors · 2015-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors No. 2014A-2833-ROC COMPLAINANT -v- ADMINISTRATIVE LAW JUDGE DECISION New Image Landscape and Pools LLC License No(s). CR21.069226-D B-5.247546-R

RESPONDENT

HEARING: January 9, 2015 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General John Tellier. Respondent was represented by William Richardson. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. On or about October 21, 1097, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.0699226-D to New Image Landscape and Pools, LLC (“Respondent”). 2. On or about August 18, 2008, the Registrar issued License No. B- 5.247546-R to Respondent. The Gonzales Contract 3. On or about May 1, 2013, Respondent entered into a contract with Frank Gonzales for the installation of a splash pad, concrete patio, and sidewalk at his residence located at 15268 West Watson Lane, Surprise, Arizona. 4. The contract provided, inter alia, the following provisions: B) Installation of 433 sq. ft. concrete sidewalk, back deck, and pool equipment pad. Three 2x2 concrete steps coming off of splash pad to existing back patio will also be installed. Concrete will be scored to match the home, concrete will not have a salt finish.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 C) Installation of 150 sq. ft. of concrete pad with acrylic coating for splash pad. Registrar’s Exhibit 4.

5. Three different renderings of the plans all include a rectangular pad under the pump equipment with one including a notation that the pad was four inches thick. Registrar’s Exhibit 12. 6. On or about October 1, 2013, the Registrar received a Complaint against Respondent from Mr. Gonzalez alleging, inter alia, that Respondent failed to install a concrete pad under the pump equipment and failed to level the pump equipment. 7. After the Registrar assigned the Complaint to its investigator, Steve Klein, for investigation, he performed a jobsite inspection. The Corrective Work Order issued on January 13, 2014, indicated Respondent was required to install a concrete equipment pad under the pump equipment and should level the pump equipment. 8. After making an inquiry with the City of Surprise, Mr. Klein also determined that the installation of the splash pad required a water and electrical permit and that Respondent had not secured those permits prior to installing the splash pad. 9. Upon review, the Registrar determined that the contract between Respondent and Mr. Gonzalez did not include all of the elements required by A.R.S. § 32-1158(B). The Ostrem Complaint 10. On or about December 21, 2012, Respondent entered into a contract with Kathleen Ostrem to remodel her landscaping at her residence located at 1622 N. Avoca Street, Mesa, Arizona. 11. The contract provided, inter alia, the following provision: 6) Grading to accomplish desired aesthetics and soil against concrete walks to be tapered 4” for granite retention. Grading will also address current issue with the improper drainage and the new grade will run all water away from the back patio. Grade will also slope towards the southern portion of back yard and continue to the east to properly release the water.

Registrar’s Exhibit 9. 12. On or about October 28, 2013, the Registrar received a Complaint against Respondent from Ms. Ostrem alleging, inter alia, poor work by Respondent in its performance of it contract to remodel her landscaping. Ms. Ostrem included a copy of the contract with the Complaint. 13. Upon review, the Registrar determined that the contract between Respondent and Ms. Ostrem did not include all of the elements required by A.R.S. § 32-1158(B). 14. After the Registrar assigned the Complaint to its investigator, Ted Gerold, for investigation, he performed a jobsite inspection. On or about March 5, 2014, Mr. Gerold issued a Directive from the Registrar indicating that it had been determined Respondent’s work failed to meet minimum workmanship standards. Respondent was directed to remedy the improper drainage away from the rear patio and through the front fence return. Citation and Complaint 15. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(12), namely A.R.S. § 32-1158(B); A.R.S. § 32- 1154(A)(20); and A.R.S. § 32-1154(A)(22). 16. With respect to the Gonzalez Contract, James D. Stewart, Respondent’s Qualifying Party, asserted that the provision in the contract did not require a concrete pad be installed under the pool equipment, but that the “pad” provided by the manufacturer complied with the requirements of the contract. Mr. Stewart did not explain the rectangular drawings under the pump equipment in the multiple renderings, but asserted that the label indicating four inches was a default setting and could not be changed. Mr. Stewart asserted that the word “concrete” used in paragraph B was not intended to modify only sidewalk and back patio, but was not intended to modify equipment pad. Mr. Stewart’s testimony as to this interpretation was not persuasive. 17. Mr. Stewart also argued that during his conversations with the City of Surprise, he was assured that the city did not require any permits for the installation of

a splash pad. Once the Registrar indicated permits were necessary, Respondent filed for a permit for a splash pad and was issued an electrical permit. 18. With respect to the Ostrem Contract, Mr. Stewart testified that it was

impossible to keep all the water from going onto the back patio despite Respondent’s

indicating in the contract that it would do so. Mr. Stewart also pointed to issues with the

landscaping in the front yard as preventing proper drainage from the back yard and

indicated that Respondent was not permitted to do any work to repair those issues in

the front yard.

19. Counsel for Respondent argued that the Registrar could not bring

additional issues not raised in the complaints filed by homeowners. The cases and

authority cited by Respondent occurred before the recent change in the Registrar’s

procedures in which it is now the Complainant in proceedings before the Office of

Administrative Hearings rather than the previous procedure in which the homeowner

was the Complainant. Therefore, those arguments are not persuasive.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. The Registrar 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. The undisputed credible testimony established that Respondent failed to did not obtain a plumbing or electrical permit for the installation of the splash pad that the City of Surprise informed the Registrar were required. Mr. Stewart was persuasive in his testimony that he had made inquiries with the City of Surprise and had been

informed those permits were not required. Therefore, the Registrar did not establish that Responded violated A.R.S. § 32-1154(A)(2).1 4. The undisputed credible evidence established that Respondent did not

install the concrete pad under the pump equipment that was required under the

Gonzalez Contract or level the pump equipment and did not perform landscaping work

that prevented all water from running onto the back patio as required under the Ostrem

Contract. Therefore, the Registrar established that Respondent did not complete

perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-

1154(A)(3), namely A.A.C. R4-9-108.2

5. The credible testimony established that Respondent did not install a four

inch concrete pad under the pump equipment and did not level the pump equipment at

the Gonzalez property and did not correct the drainage issue at the Ostrem property.

Therefore, the Registrar established that Respondent violated A.R.S. § 32-

1154(A)(22).3

6. The undisputed credible testimony established that Respondent’s contract

did not include a provision advising 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.

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. 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.” 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.” Therefore, the Registrar established that Respondent’s contract is in violation of A.R.S. § 32-1154(A)(12),4 namely A.R.S. § 32-1158(B).5 7. Respondent has the same persons named on its License CR21.0699226-

D who are also named on Respondent’s License B-5.247546-R. Any suspension of

one license will automatically result in the suspension of the other license. This

Tribunal concludes that Respondent violated the charged provision of A.R.S. § 32-

1154(A)(21).6

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Order, the Registrar shall suspen Respondent New Image Landscape and Pools, LLC

License No. CR-21.0699226-D and B-5.247546-R for a period of two weeks.

It is further recommended that the Registrar require Respondent to pay the sum

of $1,000.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with A.R.S. § 32-1154(A)(12) 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.” A.R.S. § 32-1158(B)(9) requires among the minimum elements of a contract the following: 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. A.R.S. § 32-1154(A)(20) provides grounds for suspension or revocation of a contractor’s license as follows: 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:

Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph. Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, January 29, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors