ALJDEC decisions subject to certification as final

2014A-682-ROC · Registrar of Contractors · 2015-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2015 held open until September 30, 2015 APPEARANCES: John Maruso, Complainant; Dan Rivadeneyra, Respondent’s representative; Jack Grimm, ROC Inspector; Dorothy Maruso, Complainant’s spouse, Annette Rivadeneyra, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant contracted with Respondent to landscape Complainant’s back yard. When the work was not satisfactory, Complainant filed a complaint with the Registrar of Contractors (“ROC”). 2. After a job site inspection, an ROC Inspector, Jack Grimm, issued a directive on April 30, 2014 to Respondent for the repair of various items. The text of the directive stated as follows:

Dear Respondent:

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. Sod Not level (has to be for a agility field for my dogs) He was told this The 1,200 sf of new sod is not level in many places needs repair. (do not use sand) Correct by appropriate means.

2. Drip line was not installed in correct location and left on top of ground Per jobsite agreement all exposed drip lines will be reburied to appropriate depth. Correct by appropriate means.

3. No polymeric sand in pavers as per contract Per contract, all new pavers will be filled with polymer sand. (Adjust pavers if gaps larger than 3/16” exist) Correct by appropriate means.

4. Side walk not level During jobsite inspection complainant stated that the level of sidewalk to back yard was not an issue.

5. Pavers separating a. Pavers not held in place very well were they meet the grass area at patio. Per jobsite agreement these pavers will be removed and a larger bed of concrete will be placed under them. b. Pavers around grass areas by pool have large gaps and pavers at transition point by side walk are not level. Per jobsite agreement pavers will be leveled, refit some of the angle cut pavers better and fill gaps with sand. Correct by appropriate means.

6. Valve Boxes should have been put in yard not left on Patio No agreement was in place to move valve boxes.

7. Sprinkler system may not be correct. Sprinklers are not covering well at brown grass locations. Very little water is being sprinkled at these locations. Correct by appropriate means. Per jobsite agreement, Move (sic) sprinkler heads out at the locations were the pavers were cut short to accommodate heads and replace paver with full uncut paver.

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

Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(23) and may result in the issuance of a Citation, discipline of your licenses, and a civil penalty pursuant to A.R.S. § 32-1154(D) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your licenses. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 21, 2014.

You are advised that if your license is suspended for administrative reasons[1] or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

Please direct all questions regarding this Directive to the undersigned Investigator.

3. When the corrections were not completed, the matter came to hearing at the Arizona Office of Administrative Hearings. 4. At the hearing, Inspector Grimm testified that he conducted a pre- hearing inspection on June 3, 2014 and found that items 1 and 7 had not been completed. Item 1 directed Respondent to level the sod. Inspector Grimm testified that it did not appear to him that much had been done to level the sod in the yard.[2] 5. Item 7 directed Respondent to correct the problem caused by inadequate coverage of the lawn by the sprinklers Respondent installed. Inspector Grimm testified that little to no work had been done on this issue. He said it did not appear that any heads had been added or that the sprinklers were covering the lawn any better than they were before. He added that Respondent had not moved the sprinkler heads out and replaced the pavers that had been cut short. Respondent testified that he added another sprinkler but Complainant was not watering the area properly. Complainant testified that he watered according to instructions but when the instructions said the cut back on watering, the grass started to die in some areas. 6. Regarding Item 3, in which Respondent was directed to use only polymeric sand, Inspector Grimm testified that all the pavers were filled with sand but he was not able to determine whether it was polymeric sand. Complainant’s wife testified that Respondent did not bring in polymeric sand until after he was directed to by the inspector. She stated that the appearance of the pavers with polymeric sand was different than the pavers in the back and when she asked Mr. Rivadeneyra to use all polymeric sand, he stated this would cost extra because it is expensive, even though the contract provided for polymeric sand on all the pavers. She said sand still comes out of the pavers. 7. Mrs. Maruso testified that the only thing Respondent corrected was the PVC under the sidewalk. 8. Mrs. Maruso testified in response to Respondent’s statements to Inspector Grimm, that she and her husband did not walk on the sod after it was laid. She said they watered it 3 times a day as instructed and any water that got on the pavers was due to the sprinkler system. She said Mr. Rivadeneyra had said they needed to flood the yard to let water get to the areas it was needed and the yard was constantly being flooded with the way he had set it. 9. Regarding the robbery at their home, she testified that she never brought it up to Mr. Rivadeneyra and never called him on the phone about it. She said the police called him and his crew on the phone but never brought them in for questioning. She said the police never told Mr. Rivadeneyra that he would be arrested if he came to correct the problems, which she verified with the police. 10. Mrs. Maruso testified that she needs the yard area to train her dogs for competition and she cannot use it. She said when she has tried to use it, her dogs limped afterwards from falling into something. 11. She said they agreed to exchange some poorly done brick work for pavers, which cost her an additional $1,025.00. Additionally, someone was running in her backyard after Mr. Rivadeneyra left and feel in a hole left around a sprinkler head that was not filled in. However, she denied ever fight with or yelling at Mr. Rivadeneyra. She said he seemed to get bitter and defensive when asked to correct a problem and seemed to attack her, often saying she was having an anxiety attack, but she did not attack him. 12. Mrs. Maruso testified that the edge pavers should have had cement under them to keep them in place but he just put cement next to them.

13. Mr. Maruso testified that they have been showing dogs since 1998. They bought the home because of the big back yard. He said they use a dog trainer with a full yard in the area and two weeks after her new sod was laid she was able to have the full use of it, including having classes with 7 to 10 people running on it. He said his yard was flooded and unused for 2 and a half to 3 weeks. He said the yard was so uneven he had to buy a different lawn mower. He said it was a big investment and it turned out to be a nightmare. He said they told Mr. Rivadeneyra they needed the yard level for an agility field for the dogs. 14. Mr. Rivadeneyra testified that the biggest problem he had with the Maruso’s was his relationship with them, especially after the work was done. He said they paid him in full and then when he came home there were some complaints. He said he did not go back at first because the police called and questioned his employees and the police accused his employees of breaking into the Maruso’s home. Instead, he talked to them by emails and telephone but his employees did not want to go back because of “bad blood”. 15. Mr. Rivadeneyra testified that when he went to the home after the complaint, the lawn was green,[3] but two weeks later it looks uneven[4] so he thought people had been walking on it (though he is not concerned if dogs walk on it). He said he re-set the timers and two weeks later the lawn was starting to grow back.[5] He saw a dry area and installed an extra sprinkler head. He said it is important to water often until the grass is established and then to cut back to a more normal watering schedule. 16. He said he knows there was a broken head or two but he purposely did not return to the home because the Maruso’s were “extremely difficult to work with”.[6] 17. Mr. Rivadeneyra stated that the pavers were acceptable to Inspector Grimm.[7] 18. Regarding the polymer sand, he testified that he did use polymer sand. He saw that the sand had come out in some areas but his professional opinion was that they had blasted it out with a hose. He said even though it is polymer sand, it needed time to harden. He said there was no agreement to use polymer sand on the pavers between the pool and the lawn and he just used sand there. 19. He said he corrected all other issues. He said there may be other irrigation issues but he is willing to compensate the Maruso’s for them. 20. Mr. Rivadeneyra stated that he understands there are still issues with the yard but he and his crew did not go back because of the allegations made against them regarding the robbery.[8] 21. Mr. Maruso argued that Mr. Rivadeneyra should have advised him to move the valve boxes because they added a patio and, coming from an area that did not have the need for many in-ground sprinkler systems, did not know that the valve boxes should have been moved. He said if the valve boxes flood, he will lose the patio. Mr. Rivadeneyra argued that the placement of the valve boxes was not in the contract and should not be considered a disciplinary matter. 22. Mr. Rivadeneyra testified in closing that the sand should be cleaned off with a professional cleaner, which he would be willing to pay for.[9] CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (23) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. A.R.S. § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 6. In this case, the Complainant has established that Respondent violated A.R.S. § 32-1154(A) (7), and (23) when it failed to level the yard and provide proper coverage of the sprinklers and when it failed to return and correct these issues. 7. It was not established that the contract called for polymer sand in the brick border of the back yard. However, the allegation by Respondent that Complainant and his wife were hard to work with was not only not established to be true but is not acceptable as an excuse. Further, it is ridiculous to believe that the unevenness of the yard was caused by Complainant and his wife walking on it. Respondent’s response to the complaint reaffirmed an inability or unwillingness to meet the standards supported by the Registrar and presents good cause for disciplinary action.

RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s License No. CR21.278911-D shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent levels the sod and installs sufficient sprinkler heads on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class license shall be placed on active suspension for a period of 14 days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative penalty, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, October 19, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F). [2] See Exhibit 12. [3] See Exhibit 5. [4] See Exhibit 6. [5] See Exhibit 7. [6] Hearing Record at 40:50-41:00. [7] See Exhibit 8. [8] Hearing Record at 48:00 to 48:36. [9] It appears he may have been referring to the sand in Exhibit 9.

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