ALJDEC decisions subject to certification as final

2015A-113-ROC · Registrar of Contractors · 2015-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2015 APPEARANCES: Douglas Schmeling, Owner, appeared on behalf of Complainant Advanced Interior Systems Inc. Dennis DeCarmine, Owner, appeared on behalf of Respondent Best Deal Landscaping LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.293625-D to Best Deal Landscaping LLC (“Respondent”). The Registrar received a Complaint against Respondent from Douglas A. Schmeling on behalf of Advanced Interior Systems Inc. (“Complainant”) regarding a concrete driveway Respondent installed at a residence at 1814 East Evergreen Street, Mesa, Arizona. Complainant cited the failure of Respondent to properly slope the concrete away from the home and out of the driveway. After the Registrar assigned the Complaint to its investigator, Beau Cruz, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Cruz issued a Directive from the Registrar in which he found: Improperly poured and graded concrete driveway extension connected to existing driveway leading to backyard area of structure, resulting in excessive areas of puddled water between the block fence wall between the neighbor’s yard to the west, neighbor’s yard to the north, eventually flowing into back yard area, and not allowing for water to properly drain away from structure and flow out existing driveway to the street.

Complainant requested a hearing. The Registrar issued a Citation against Respondent, charging a possible violation A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3). A hearing was held on October 15, 2015. Inspector Cruz testified about the Registrar’s standards. Complainant submitted nine exhibits and presented the testimony of Mr. Schmeling. Respondent submitted one exhibit and presented the testimony of Dennis DeCarmine, owner, and Anthony DeCarmine, Dennis DeCarmine’s father. Hearing Evidence On or about January 5, 2015, Complainant contracted with Respondent to install a concrete driveway. Complainant did not sign the contract until January 7, 2015. The contract provided for concrete install, up to 1900 square feet; grade prep, up to 1900 square feet; demo concrete, up to 272 square feet; and haul away concrete for a total contract price of $6,000.00. Mr. Schmeling testified that he had already installed some of the expansion joints around the driveway, but when Respondent accepted the job, Dennis DeCarmine stated he would handle installing the rest of the expansion joints. Mr. Schmeling also testified that he had made some marks on the house and/or on the block wall, relating to the grade of the driveway. Mr. Schmeling stated that Respondent failed to saw cut the concrete and that the driveway now has cracks as a result. On some later point, Dennis DeCarmine produced a new copy of the contract with the additional note “Customer already installed Forms and Marked all height of concrete to his pecks. We hold no responsibility for slops. we only are grading to ensure thickness of concrete.” (All errors in original). Dennis DeCarmine signed the contract and dated it January 7, 2015. Dennis DeCarmine testified that he installed the driveway in conformity with the marks Mr. Schmeling had made and that any problem with drainage or puddling was the result of Mr. Schmeling’s improper marks and that Respondent was not liable for those mistakes. Dennis DeCarmine also testified that expansion joints were not needed between the block wall and the driveway or between the house and the driveway because the other side of the driveway was not abutting any structure and the concrete could expand in that direction. Anthony DeCarmine testified that he oversaw the jobsite and that Mr. Schmeling took him around the project to show him all the marks he had made. When questioned regarding Exhibit 8, a set of photographs showing a particular mark prior to the installation and the same mark after the installation in which the driveway was not up to the mark, Anthony DeCarmine acknowledged he failed to meet the mark in that area. Inspector Cruz testified that the installation of the driveway was beyond the scope of Respondent’s landscaping and irrigation system permit. Inspector Cruz also testified that expansion joints were needed between the block wall and the driveway and the house and the driveway because each of those elements would expand and contract at a different rates. Inspector Cruz also testified that workmanship standards require that Respondent slope the driveway in such a way that the water would flow away from the house and toward the street and would not puddle. Inspector Cruz concluded that Respondent’s installation of the driveway was not in accordance with workmanship standards. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 4, 2015. Such prior License record reflects that Respondent’s License CR21.293625-D was current. Such prior License record also reflects that there is one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant 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 evidence established that Respondent failed to properly install the concrete driveway by failing to install expansion joints, failing to properly slope the driveway away from the house, and failing to saw cut the driveway. The additional notes in the new draft of the contract that was not signed by Complainant and that Dennis DeCarmine admitted he amended after he realized there may be an issue with the project does not nullify Respondent’s responsibility to properly install the driveway in conformity with workmanship standards. Therefore, Complainant established Respondent’s work was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, [1] and thereby of A.R.S. § 32-1154(A)(3). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Best Deal Landscaping LLC’s License No. CR21.293625-D for a period of 30 days. It is further recommended that in addition to the suspension, Respondent’s License shall be placed on disciplinary probation for a period of 180 days commencing on the expiration of the 30-day suspension. 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, November 4, 2015.

/s/ Tammy L. Eigenheer 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 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.”

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