ALJDEC decisions subject to certification as final

2015A-4294-ROC · Registrar of Contractors · 2016-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2016, at 1:00 p.m.; the record was held open until April 21, 2016, to allow Complainant to furnish to Respondent hard or digital copies of certain photographic evidence that was submitted at the hearing. APPEARANCES: Az Pavescapes LLC (“Complainant”) appeared through Eladio Peña (“Mr. Peña), its qualifying party and member; Pure Landscape Inc. (“Respondent”) appeared through Wes Dobias (“Mr. Dobias”), its project superintendent. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 6, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.225867-D for dual landscaping and irrigation systems to Complainant. Mr. Peña is Complainant’s qualifying party and only member. On May 8, 2012, the Registrar issued License No. CR21.278660-D for dual landscaping and irrigation systems to Respondent. On or about October 13, 2015, Complainant filed a complaint with the Registrar that alleged that Respondent had paid only $3,039.00 on a $4,894.00 contract to perform landscaping at a project located at 11914 S. 184th Drive, Goodyear, Arizona 85338 for a homeowner named Gorman (“the Gorman project”). Respondent did not resolve the complaint and on January 28, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32- 1154(A)(10) against Respondent’s contractor’s license. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that any monies that would otherwise have been owed to Complainant were offset by $1,080.00 in deductions due to collateral damage to a gate and plants at the Gorman project that Complainant had allegedly caused and additional supplies that Respondent allegedly had to purchase due to Complainant’s poor workmanship. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 14, 2016, at 1:00 p.m. Mr. Peña testified and submitted thirteen exhibits on Complainant’s behalf. Mr. Dobias testified, presented the testimony of Pete Jorgic, Respondent’s prior project superintendent, and submitted five exhibits on Respondent’s behalf. Hearing Evidence Neither of the parties submitted Respondent’s original request for proposals, Complainant’s proposal, or any other document that memorialized the parties’ initial agreement.[1] Complainant submitted Invoice No. 2009 dated June 13, 2015, in the amount of $4,119.00 and Invoice No. 2010 dated July 29, 2015, in the amount of $3,350.00. Both Invoice Nos. 2009 and 2010 had Pete Jorgic’s initials on them.[2] According to Respondent’s written answer to the Citation, it paid Invoice Nos. 2009 and 2010. Respondent’s written answer did not include the amount of its payment.[3] Complainant also submitted Invoice No. 2019 dated June 13, 2015, in the amount of $775.00 for the following scope of work: Lift and reinstall 180 sf of travertine from home and patio side. Per Pete due to fact that he sold the patio to be covered once travertine Was already installed.

Redo flower bed opening by fireplace side that needed to go from Original 8” opening per Pete to 16” opening requested by Wes once He entered company.

Install 2 courses of stack ledge on back side of fire requested by Wes.[4]

The copy of Invoice No. 2019 that Complainant submitted into evidence did not show Mr. Jorgic’s initials. Mr. Dobias and Mr. Jorgic testified that that they never received Invoice No. 2019 and that they did not approve the scope of work described on it. Mr. Dobias testified that any additional work that Complainant performed on the Gorman project was caused by its own failure in following the CAD drawings for the project.[5] Respondent alleged that it back charged Complainant a total of $1,080.00 for additional charges that Respondent incurred due to Complainant’s deficient workmanship on the Gorman project.[6] The back charges included $840.00 for new plants because allegedly many plants that Respondent had originally installed on the Gorman project died because Complainant filled the pool self-leveler with sand, causing it to malfunction and to flood the yard with chlorinated water from the pool. Mr. Dobias testified that the flooding occurred in early or mid-August 2015. Respondent submitted photographs of dead or distressed plants.[7] Respondent did not submit a photograph of the flooded backyard. Respondent also submitted a black-and-white photograph of the pool self- leveler. The quality of the photograph did not allow sand in the leveler to be definitively identified.[8] A close-up of the photograph on Mr. Dobias’ smartphone showed concrete around the self-leveler with a small amount of sand on it. Mr. Peña denied that Complainant had filled the self-leveler with sand. Complainant submitted photographs of healthy growing plants during and after the time that Respondent’s witnesses alleged that the backyard was flooded with water from the pool.[9] Respondent also back charged Complainant $100.00 for allegedly damaging a gate. Mr. Peña denied that Complainant damaged the gate and testified that numerous trades used the gate to work on the Gorman project. Respondent also back charged Complainant $70.00 for grout because “the poor workmanship on the grout was unacceptable and had to be completed a second time [because] the grout between the waterline tile and pool coping was installed over an inch thick, resulting in coping that was too high and an unacceptably wide grout line.”[10] Mr. Peña denied that Complainant had installed the grout between the waterline tile and pool coping too thick. Respondent also back charged Complainant $70.00 for sand because “poor workmanship required some of the travertine to be lifted, leveled, and sanded again.”[11] Mr. Peña denied that Complainant had to remove and reinstall the travertine due to its own mistake. Instead, he testified that Respondent’s superintendent requested the change after meeting with the customer. Complainant submitted a flash drive of a conversation between Mr. Peña and Mr. Dobias on August 21, 2015. In the conversation, in response to Mr. Peña’s demand that Respondent pay Complainant, Mr. Dobias only mentioned three tiles that needed to be repaired but did not any of the back charges.[12] CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[13] Complainant bears the burden of proof and must establish cause to revoke, suspend, or otherwise discipline Respondent’s contractor’s license by a preponderance of the evidence.[14] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[15] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[16] 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.”[17] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” The record does not include the terms of the original contract or the original contract amount. The amounts of the invoices that Complainant submitted into evidence do not correspond to the contract amount or amount of total payments on the complaint that Complainant filed with the Registrar. In this decision, based on the evidence that the parties submitted and the amounts on Complainant’s complaint,[18] the Administrative Law Judge assumes that the only amounts in dispute are the charges for the work described on Complainant’s Invoice No. 2019 and Respondent’s back charges. Complainant has not borne its burden to establish by a preponderance of the evidence that it is entitled to be paid the additional charges in the amount of $775.00 for the work described on Invoice No. 2019. Respondent has not borne its burden to establish by a preponderance of the evidence that it is entitled to deduct $1,080.00 or any other amount from amount that it would otherwise have owed Complainant. Because $775.00 deducted from $1,080.00 is only $335.00, which is less than the $750.00 required for a violation of A.R.S. § 32-1154(A)(10), Complainant has not established that Respondent violated the only statute charged in the Registrar’s Citation for Alleged Violation of A.R.S. § 32- 1154(A)(10). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Az Pavescapes LLC’s complaint in Case No. 2015-4294 against Respondent Pure Landscape, Inc.’s License No. CR21.278660-D shall be dismissed 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, April 25, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Mr. Dobias stated that he had a photograph of the original request for proposals on his smartphone, but Respondent did not have an electronic or hard copy that could be submitted into evidence. [2] See Complainant’s Exhibit 10 at 1, 2. [3] According to Respondent’s written answer, it also paid in full Complainant’s Invoice No. 1998 in the amount of $475.00 and Invoice No. 1999 in the amount of $565.00 on the Gorman project. Although the record does not contain these invoices, they apparently were not at issue at the hearing. [4] Complainant’s Exhibit 10 at 3. [5] See Respondent’s Exhibit B. The Administrative Law Judge could not discern whether the items that comprised the additional charges on Complainant’s Invoice No. 2019 were or were not on the CAD drawing. [6] See Respondent’s written answer at 1-2. [7] See Respondent’s Exhibit C at 2-5. [8] See id. at 1. [9] See Complainant’s Exhibits 4, 5, and 7. [10] Respondent’s written answer at 2. [11] Id. [12] See Complainant’s Exhibit 14. According to Respondent’s written answer, it paid Invoice Nos. 2009 and 2010 on September 15, 2015. [13] See 32-1101 et seq. [14] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [15] See A.A.C. R2-19-119(B)(2). [16] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [17] Black’s Law Dictionary at page 1220 (8th ed. 1999). [18] The amount of the parties’ contract on the complaint ($4,894.00) less the amount paid ($3,039.00) is $1,855.00. The amount of Invoice No. 2019 ($775.00) plus the amount of Respondent’s backcharges ($1,080.00) is also $1,855.00.

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