ALJDEC decisions subject to certification as final

2015A-3907-ROC · Registrar of Contractors · 2016-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2016, at 10:00 a.m. APPEARANCES: Bibiano Tirado (“Complainant”) appeared on his own behalf; Leonard Wayne Tallent dba, Wayne’s Landscaping (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. In 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.153581-D for dual landscaping and irrigation systems to Respondent. 2. In 2015, Complainant filed a complaint with the Registrar against Respondent alleging workmanship deficiencies in the block walls that Respondent constructed around Complainant’s pool pump, filter, and other pool equipment at his house at 12535 W. Montebello Ave., Litchfield Park, Arizona 85340. According to the complaint, the contract amount was $4,280.00, which Complainant had paid in full. 3. Complainant alleged nine specific deficiencies, as follows: 1. Walls are not square where they should be.

2. Walls are not straight where they should be.

3. Walls are not level where they should be.

4. Wall angles do not match where they should be similar.

5. Wall lengths are longer than they should be.

6. Wall heights are not equal where they should be.

7. Gate is installed crooked, both by height and depth.

8. Space between walls is wider at the top than at the bottom where gate is installed.

9. Paint on fake rocks is damaged by work site workers. . 4. Complainant complained in a letter that he attached to the complaint that Respondent had not provided a written contract. 5. The Registrar assigned the complaint to its Investigator, Steven Lawton (“Investigator Lawton”), for investigation. Investigator Lawton performed a jobsite inspection and on February 3, 2016, issued a directive to Respondent to perform certain repairs on or before 5:00 p.m. on February 29, 2016. The February 3, 2016 directive provided in relevant part as follows: 1. Pool equipment enclosure walls not straight and north wall is concaved in the middle of the wall. Correct by Appropriate Means.

2. Retaining wall is not straight. Correct by Appropriate Means.

3. Mortar joints are not straight, plumb and [vary] in thickness. Correct by Appropriate Means.

4. Opening for gate is not square, straight and plumb for the gate to sit in the opening correctly. Correct by Appropriate Means.

6. Complainant eventually requested a hearing. On April 4, 2016, the Registrar issued a Citation against Respondent’s licenses, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158(B). 7. Respondent filed a timely written answer to the Citation, alleging that all the work performed at Complainant’s house was designed and supervised by Complainant, which had resulted the deficiencies noted on the Registrar’s Directive. Respondent stated that he had corrected all workmanship deficiencies on the project. 8. An evidentiary hearing was held on June 8, 2016. Complainant submitted seven exhibits, testified on his own behalf, and presented the testimony of Leon Grenga. Respondent submitted five exhibits, testified on his own behalf, and presented the testimony of his son, Anthony Ray Tallent (“Mr. Tallent”), who had been the jobsite superintendent on Complainant’s job. Investigator Lawton also testified. Hearing Evidence 9. Investigator Lawton testified that on March 30, 2016, he performed a compliance inspection. The masonry walls had been corrected to comply with workmanship standards. However, according to his compliance inspection notes, “the gate at the pool equipment enclosure has been mounted backwards with the slat mounts showing to the outside instead of the inside . . . .” 10. Complainant and Respondent both submitted photographs showing that the gate had been remounted so that the slat mounts were on the inside of the gate.[1] Respondent’s showed his photographs to Investigator Lawton. Investigator Lawton identified the gates as the one at Complainant’s job. 11. Respondent’s photographs of the gate did not show any obvious workmanship deficiencies. 12. Complainant’s photographs were much more close-up that Respondent’s. Complainant’s photographs showed minor imperfections in the paint and wooden slats. Complainant acknowledged that the gate had been opened and closed at least 20 times since Respondent had rehung the gate. Because Complainant allowed Investigator Lawton to be released before Complainant submitted the photographs of the gate, Investigator Lawton did not have an opportunity to opine whether the minor imperfections in the paint and wooden slats complied with the Registrar’s workmanship standards. 13. Complainant submitted three hand-drawn, unscaled, drawings that showed an evolving design for the pool enclosure fence.[2] Complainant testified that he requested that Respondent construct the pool enclosure according the most recent set of drawings. 14. Investigator Lawton’s jobsite inspection notes indicated that although Complainant stated that the dimensions of the wall should have matched drawings that he prepared, no drawings were provided to Investigator Lawton at the jobsite inspection. 15. Respondent’s onsite superintendent, Mr. Tallent, denied that he had ever seen the drawings. Complainant testified that he gave the drawings to Respondent’s laborer and that the drawings he submitted at the hearing were redrawn. 16. Respondent acknowledged that he had seen the plans, which showed some curved walls and corners that deviated from 90º. Respondent testified that unless stucco is applied over a block wall, corners that are located anywhere but abutting a wall must be 90º because, otherwise, the cut will show. Respondent testified that the 8”x8”x16” concrete blocks that are used to construct walls must be laid straight for structural integrity, unless rebar is used to reinforce the wall. 17. Neither party submitted a signed, written contract. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[5] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[7] 4. Complainant did not establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3),[8] namely A.A.C. R4-9-108,[9] based on the minor imperfections in the paint and slats on the pool enclosure gate. 5. Complainant failed to provide any plans to Investigator Lawton at the initial jobsite inspection and the Registrar’s Citation did not charge a violation of A.R.S. § 32-1154(A)(2).[10] Even if Respondent had received adequate notice of the alleged deviations from plans,[11] Complainant did not establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2). 6. Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(12),[12] namely, A.R.S. § 32-1158,[13] because Respondent did not provide a written contract that included all required elements before the performing the job. Although Respondent should make sure that it provides a written contract to future clients and that its contract forms comply with the Registrar’s statutes, Respondent’s violations were technical and did not cause Complainant to suffer any identifiable damages. A written contract may have resolved the issues that arose at hearing about the scope of Respondent’s work. RECOMMENDED ORDER Based on the foregoing, it is recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar the following: (1) A form contract that complies with the requirements of A.R.S. § 32-1158; and (2) Written proof that he has provided written contracts that conform to statutory requirements on all jobs that he has undertaken since the effective date of the order. It is further recommended that if Respondent fails to provide proof that he has prepared a form contract that complies with statutory requirements and fails to provide written proof that he has started preparing written contracts for his customers, it is recommended that Respondent’s license be suspended until he provides such proof. 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 five days from the date of that certification. Done this day, June 13, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Respondent’s Exhibit E; Complainant’s Exhibits 4A-4D. [2] See Complainant’s Exhibits 1, 2, and 3. [3] See A.R.S. § 32-1154(A). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] Black’s Law Dictionary at page 1220 (8th ed. 1999). [8] 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.” [9] 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.” [10] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which 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.” [11] See A.R.S. § 41-1092.05(D)(3), which required the Registrar to include in the Citation “[a] reference to the particular sections of the statutes and rules involved.” Complainant did not request that the Citation be amended to charge a violation of A.R.S. § 32-1154(A)(2). [12] 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.” [13] A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. 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 ten point bold type. . . .

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