ALJDEC decisions subject to certification as final

2014A-4669-ROC · Registrar of Contractors · 2015-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2015, at 8:00 a.m. APPEARANCES: Sherry Steinkraus (hereinafter “Complainant” or “Ms. Steinkraus”) appeared don her own behalf. Outdoor X Scapes Inc. dba: Tree Pros Services appeared through its officer, Roland Martinez. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License Nos. CR21.253883-D and KA-5.296570-D issued by the Registrar. Both of Respondent’s Licenses are current. This is a residential matter in which on or about October 28, 2013, contracted with Respondent for the remodeling of the front and back yards of Complainant’s residence located at 2222 E. Desert Trumpet Road, Phoenix, Arizona (hereinafter the “residence”). Shortly after Respondent completed its construction work at the residence, the Complainant notified Respondent of numerous problems with the construction work performed by Respondent and requested appropriate corrections. Respondent failed to correct its work to the Complainant’s satisfaction. On November 14, 2014, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. On March 19, 2015, the Registrar issued a written Directive to the Respondent directing it to cause appropriate corrective action on the construction work performed at the residence. The written Directive provided, in relevant part, as follows: 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. Backyard stucco wall cracked in majority of joints. Repaired not removing all damaged stucco and repaired cracks again. Repair stucco repaired areas for a more consistent look by removing loose material and touching up where needed and paint, per jobsite agreement. NOTE: Crack may still be visible. 2. Stamped patio damaged by workers and Contractor would not pay the Ultimate Concrete Quote. They attempted to fix badly. Four sections of the pool deck are inconsistent with the rest of the pool deck. See photos of the four (4) sections that need repair. NOTE: This repair needs to be performed by an appropriately licensed contractor.

The parties were in dispute as to whether the Respondent had complied with terms of the written Directive and Complainant requested the Registrar to issue a Citation against Respondent’s license. On July 8, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained one charge: Charge 1: 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).[1]

The assigned Registrar Investigator, Jack Grimm (hereinafter “Investigator Grimm”), testified that he had performed the initial onsite inspection and that he had prepared the written Directives. Investigator Grimm stated that he performed a compliance inspection at Complainant’s residence on May 13, 2015. Investigator Grimm testified that item number one of the written had been properly corrected. Investigator Grimm stated that the second item in the written Directive had not been corrected. Investigator Grimm said that no work had been done. Investigator Grimm testified that only four sections on the north side of the stamped patio required repair. Investigator Grimm said that the Complainant wanted the entire patio redone. Investigator Grimm said that the Registrar had allowed the Respondent additional time to get bids from appropriately licensed contractors to perform the directed corrective work on the stamped patio. Investigator Grimm testified that no bids for the directed stamped patio repairs were presented to the Complainant. Investigator Grimm said that he was told that the Complainant had denied the contractors selected by Respondent access to her residence to see the damaged areas of the stamped concrete patio. Investigator Grimm said that the Respondent is not properly licensed to perform the repairs to the stamped concrete patio. Investigator Grimm testified that he walked the stamped patio extensively during his onsite inspection. Investigator Grimm said that the patio looked consistent except for the four areas set forth in the written Directive. Investigator Grimm said that it was his recommendation that the Respondent not be cited for a violation because he felt the Complainant had made it very difficult for the Respondent to make the repairs to the stamped concrete. Investigator Grimm said that he believed that Respondent had made an honest attempt to fully comply with the terms of the Directive. Investigator Grimm’s testimony is found to be credible. Ms. Steinkraus testified that the Respondent damaged her entire stamped patio. Ms. Steinkraus stated that her patio was in excellent condition when the Respondent started its work on her property. Ms. Steinkraus said that Respondent provided her a letter on December 4, 2013, which provided that Respondent would cover the cost of the repairs to the damaged areas only. [2] Ms. Steinkraus said that there were big blobs of discoloration on her stamped patio. Ms. Steinkraus said that she tried to explain to the Investigator that at different times of the day the blobs were more visible than other times of the day. Ms. Steinkraus asserted the limitation of only fixes to certain areas of the stamped patio was not fair. Ms. Steinkraus testified that on June 17, 2015, she retained an alternative contractor to perform the corrective work on her stamped patio. Ms. Steinkraus stated that she paid the alternative contractor the sum of $1,448.69 for the corrective work on her patio. Ms. Steinkraus said that Respondent should be required to reimburse her for the cost of the corrective work. Ms. Steinkraus testified that the reason for the multiple areas of discoloration on her patio was due to top coat sealer burn-off. Ms. Steinkraus said that the Respondent should have known this. Ms. Steinkraus said that you cannot just repair one area in the patio. She said that the color has to be applied over the entire patio for the color to be the same. Ms. Steinkraus testified that Mr. Martinez yelled at her on the telephone and that he was impossible to discuss anything at all with. Ms. Steinkraus said that Mr. Martinez disrespected her on her own property in front of the two young men that were there to provide an estimate for the directed corrective work on the stamped patio. Ms. Steinkraus said that the two men declined to submit a bid because they knew that they would be taking responsibility for Respondent’s poor work. Ms. Steinkraus said that Mr. Martinez refused to take responsibility and complete the project in a satisfactory manner. Mr. Martinez testified that Respondent fully complied with item number one of the written Directive and tried to fully comply with item number two of the written Directive. Mr. Martinez stated that the Respondent did not cause damage to the entire stamped patio that that the Respondent should not be responsible for the cost of refinishing the entire patio. Mr. Martinez said that Respondent tried to get a quote from the contractor selected by the Complainant but that Complainant insisted that the corrective work include the refinishing of the entire patio rather than the four areas set forth in the written Directive. Mr. Martinez acknowledged that the Respondent had agreed to cover the cost of the repairs performed by the selected by the Complainant to the damaged areas only. Mr. Martinez said that Respondent was not willing to cover the cost of the entire refinishing project. Mr. Martinez’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] 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.[4] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Investigator Grimm credibly testified that only four sections on the north side of the stamped patio required repair. Investigator Grimm said that the Complainant wanted the entire patio redone. Investigator Grimm said that it was his recommendation that the Respondent not be cited for a violation because he felt the Complainant had made it very difficult for the Respondent to make the repairs to the stamped concrete. Investigator Grimm said that he believed that Respondent had made an honest attempt to fully comply with the terms of the Directive. Mr. Martinez credibly testified that Respondent tried to get a quote from the contractor selected by the Complainant but that Complainant insisted that the corrective work include the refinishing of the entire patio rather than the four areas set forth in the written Directive The preponderance of the evidence established that Respondent’s selected subcontractor was denied reasonable access to Complainant’s patio unless the Respondent agreed to refinish the entire patio. The written Directive does not require the complete refinishing of Complainant’s stamped patio. This Tribunal concludes that Respondent was denied a reasonable opportunity to fully comply with the terms of the Registrar’s written Directive. Complainant failed to establish by a preponderance of the evidence that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that that this matter be dismissed. . 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 five days from the date of the certification. Done this day, December 23, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. 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.

[2] See Exhibit 10 (12/4/13 Email from Respondent to Complainant). [3] A.R.S. § 32-1154(A). [4] A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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

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