ALJDEC decisions subject to certification as final

2015A-6-ROC · Registrar of Contractors · 2015-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2015, at 8:00 a.m. APPEARANCES: Capital Landscapes LLC (“Applicant”) appeared through its member and qualifying party, Brent Genereux; the Arizona Registrar of Contractors (“the Registrar”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about August 28, 2014, Brent Genereux (“Mr. Genereux”) on behalf of Applicant filed an Application for Contractor’s License with the Registrar for a CR21 license for landscaping and irrigation systems. Mr. Genereux was listed on the application as Applicant’s qualifying party and only member.[1] 2. Mr. Genereux also submitted with the application the following explanation for why he claimed five years’ experience, but submitted no W-2 tax forms to show compensation for his claimed employment: 08/28/2008 – 10/01/2011

Arizona Luxury Design and Landscapes LLC

I interned 40 hours per week with this company doing new backyard installs and maintenance i.e. pavers, synthetic grass, irrigation, all weekly maintenance work, etc.

10/01/2011 – 11/15/2013

Centurion Stone of Arizona

I interned 40 hours per week with this company doing new backyard installs and maintenance i.e. pavers, synthetic grass, irrigation, all weekly maintenance work, etc.

11/15/2013 – Current

Self-employed

Now I currently work for myself doing weekly maintenance as well as complete backyard installs 40+ hours a week.

During my time of interning I wasn’t being paid I was getting the experience I was going to need to get my own license one day.[2]

3. Mr. Genereux attached a completed Work Experience Record form to the application that stated that he had worked for Arizona Luxury Design & Landscapes (“Arizona Luxury”), License No. 247262, an average of 40 hours per week between August 2008, and October 2011, performing landscaping, including weekly maintenance, installation of irrigation systems, and managing a crew of more than 10 men. The Work Experience Record for Arizona Luxury was signed by Kinyon Chiles under the following verification: I verify that I have direct knowledge of the work experience for the time period outlined above. I, the undersigned, hereby verify under penalty of perjury that all the information contained herein is true to the best of my knowledge and belief.[3]

Mr. Chiles also signed five Project Information forms to verify specific projects that Mr. Genereux had work on as an unpaid intern for Arizona Luxury, as follows: 1. A project in June 2009, for Mark Chiles at 3957 E. Fairfield Circle in Mesa, Arizona 85205 for weekly maintenance over one acre at a cost of $200.00/week;[4] 2. A project in September 2010, for Kathy Nichols at 1391 E. Lynx Way in Mesa, Arizona 85263, for weekly maintenance and full backyard installation, including pavers, putting green, and BBQ, over 3,500 square feet at a cost of $9,000.00;[5] 3. A project in October 2010, for Allison Weather at 2904 E. Melrose in Gilbert, Arizona 85236 for complete landscape installation, including irrigation, shrubs, pavers, grass, and sprinklers, over 3,500 square feet at a cost of $10,000.00;[6] 4. A project in April 2011, for Judy Thames at 1818 N. Waverly St. in Mesa, Arizona 85213 for full backyard installation, including pavers, irrigation, and water features, over 1,500 square feet at a cost of $9,000.00;[7] and 5. A project in September 2011, for John Donato at 1147 W. Dovetree in Queen Creek, Arizona 85216 for courtyard wall, synthetic grass, irrigation, gravel, and pavers over 1,600 square feet at a cost of $12,000.00.[8] 6. Mr. Chiles signed the five Work Experience Records for Mr. Genereux under the following verification: I verify that I have direct knowledge of the work experience for the time period outlined above. I, the undersigned, hereby verify under penalty of perjury that all the information contained herein is true to the best of my knowledge and belief.

4. Mr. Genereux also submitted with Applicant’s application a completed Work Experience Record form that stated that Mr. Genereux had worked for Centurion Stone of Arizona (“Centurion Stone”), License No. 231702, an average of 40 hours per week between October 2011, and November 2013, performing weekly maintenance and full landscape installations, including irrigation and facial stone, and managing a crew of more than six men. Shawn Ross signed the Work Experience Record for Centurion Stone.[9] 5. Mr. Ross also signed five Project Information forms to verify specific projects that Mr. Genereux had worked on as an unpaid intern for Centurion Stone, as follows: 1. A project on December 13, 2011, for John Kimble at 4316 S. Celebration Dr. in Gold Canyon, Arizona 85275 for 700 square feet of pavers at a cost of $2,500.00;[10] 2. A project in May 2012, for Brian Hartman at 305 E. Harvard Ave. in Gilbert, Arizona 85234 for tree removal, weekly maintenance, irrigation, and building a wall at a cost of $6,000.00;[11] 3. A project in February 2013, for Patricia Bley at 3734 E. Mallory St. in Mesa, Arizona 85213 for weekly maintenance, pruning, trimming, installation of facial stone, and irrigation at a cost of $4,000.00;[12] 4. A project in May 2013, for John Seader at 5810 E. Montera St. in Mesa, Arizona 85215 for concrete removal, installation of pavers and synthetic grass, and repairing irrigation at a cost of $5,000.00;[13] and 5. A project in October 2013, for Dave Stephens at 4272 E. Osborne in Phoenix, Arizona 85018 for weekly maintenance, irrigation, trimming, blowing, and raking at a cost of $200.00/month.[14] 6. On or about December 11, 2014, the Registrar’s Chief of Licensing, Lawrence R. Mathews, sent a letter to Applicant to notify it that the Registrar had determined to deny its license application under A.R.S. § 32-1122(F)(1), and summarizing the facts that supported the denial under this statute.[15] Mr. Mathews’ December 11, 2014 letter concluded as follows: Genereux has failed to supply evidence that he has four (4) years management or trade experience required pursuant to statute for this license classification. . . .[16]

7. Mr. Genereux requested a hearing on the Registrar’s denial of Applicant’s license application. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on March 4, 2015. 8. Mr. Genereux on Applicant’s behalf submitted three exhibits and presented the testimony of three witnesses: (1) Mr. Chiles, (2) Victor Genereux, his father; and (3) himself. The Registrar submitted seven exhibits and presented the testimony of two witnesses: (1) Mr. Mathews; and (2) Dave Gustafson, a Licensing Specialist employed by the Registrar. Hearing Evidence 9. Mr. Mathews testified that the Registrar requires license applicants to complete Work Experience Record and Project Information forms for the qualifying party so that the Registrar can verify whether the qualifying party possesses the number of years of experience in the license classification that applicable statute requires. Mr. Mathews explained that the Registrar also must determine whether the work that the qualifying party claims for the required experience was performed in a professional and workmanlike manner. 10. Mr. Mathews testified that to verify the qualifying party’s claimed work experience for a license application, the Registrar must be able to contact the persons who verified the information on the Work Experience Record forms. The Registrar also must be able to contact the persons who verified the information on the Project Information forms to ensure that the qualifying party performed work on the project, that the work performed was the type of work performed under the license classification sought, and that the work was performed in a professional and workmanlike manner. Mr. Mathews explained that to protect the public health, safety, and welfare, A.R.S. § 32-1122(F)(1) requires a minimum of four years’ practical or management trade experience. 11. Mr. Genereux testified that he has at least four years’ experience in performing work within the scope of a C-21 landscaping and irrigation license. In addition to the experience claimed for working for Arizona Luxury and Centurion Stone, Mr. Genereux testified that he has been worked for himself performing landscaping and irrigation work under the so- called handyman’s exemption set forth in A.R.S. § 32- 1121(A)(14).[17] 12. Mr. Genereux testified that after he submitted the application and did not hear anything, the contractors’ center that helped him prepare and submit the application advised him to call the Registrar. Mr. Genereux testified that 108 days after he submitted the application, he went to the Registrar’s office and spoke to someone who could not tell him the status of the application because the person who had been responsible for processing the application was no longer in state service. Mr. Genereux testified that twelve hours after he went to the Registrar’s office, he received the denial. 13. Mr. Genereux’s father, Victor Genereux (“Mr. Victor”), testified that Mr. Genereux had worked in the landscaping industry since 2008, and had performed three projects for Mr. Victor on his property, including pavers and synthetic grass. Mr. Victor testified that Mr. Genereux did an excellent job on all three projects. 14. Mr. Mathews acknowledged that A.R.S. § 32-1122(F)(1) does not require that a license applicant’s claimed experience be for a contractor who is licensed in the same category. Mr. Mathews testified that under the regulatory authority of the agency, the Registrar must determine the criteria to recognize an applicant’s claimed experience. Mr. Mathews explained that making a determination of experience is cleaner if the employer who signs Work Experience Record and Project Information forms holds a license that is in good standing in the same category for which the applicant seeks licensure. Mr. Genereux’s Experience with Arizona Luxury 15. Mr. Gustafson testified that he called Mr. Chiles twice and left messages to verify Mr. Genereux’s claimed work experience with Arizona Luxury, but that Mr. Chiles never returned his call. 16. Mr. Chiles is the qualifying party, member, and only person listed on Arizona Luxury’s License No. CR21-247262, which the Registrar first issued on August 12, 2008.[18] Mr. Chiles testified that he has known Mr. Genereux since 2006, and that between August 2008, and August 2011, Mr. Genereux worked 40 hours per week for Arizona Luxury doing all kinds of landscaping work. Mr. Chiles testified that no one from the Registrar called him to verify Mr. Genereux’s work experience. 17. Mr. Chiles acknowledged that on February 3, 2011, Brandie Cink filed a complaint with the Registrar against Arizona Luxury’s license alleging five workmanship deficiencies in its performance of its May 1, 2010 contract to install landscaping at Ms. Cink’s property at 3682 E. San Carlos Pl., Chandler, Arizona 85249, which the Registrar designated as Case No. 2011- 693. Mr. Chiles also acknowledged that on February 17, 2011, the Registrar’s inspector performed a jobsite inspection that Arizona Luxury did not attend, that on February 23, 2011, the Registrar issued a written directive that required Arizona Luxury to take appropriate action to correct all five workmanship deficiencies, and that on May 9, 2011, the Registrar issued a Citation and Complaint that charged cause to discipline Arizona Luxury’s license under various statutes, including A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108,[19] and former A.R.S. § 32-1154(A)(23).[20] Mr. Chiles also acknowledged that as a result of Arizona Luxury’s failure to file a timely written answer to the Citation and Complaint in Case No. 2011-693, on July 1, 2011, the Registrar issue a Decision and Order finding that under A.R.S. § 32-1155(B), Arizona Luxury admitted the charged violations and requiring it to comply with the February 23, 2011 written directive and to pay a $500.00 civil penalty under A.R.S. § 32-1154(D).[21] 18. Mr. Chiles also acknowledged that on February 1, 2012, Kermit L. Stricklin filed a complaint with the Registrar against Arizona Luxury’s license alleging that it had failed to complete performance of its November 20, 2011 contract to install landscaping at Mr. Stricklin’s property at 5410 West Milada Drive in Laveen, Arizona 85339, which the Registrar designated as Case No. 2012-591. Mr. Chiles also acknowledged that on March 14, 2012, the Registrar issued a Citation and Complaint that charged cause to discipline Arizona Luxury’s license under various statutes, including A.R.S. § 32-1154(A)(1),[22] and that as a result of Arizona Luxury’s failure to file a timely written answer to the Citation and Complaint in Case No. 2012-591, on May 11, 2012, the Registrar issued a Decision and Order finding that under A.R.S. § 32-1155(B), Arizona Luxury admitted the charged violation and, as a result, revoking its license.[23] 19. Mr. Chiles acknowledged that Arizona Luxury’s license was suspended for lack of bond between March 29, 2009, and April 22, 2009, and for non-renewal between September 1, 2010, and September 23, 2010. Mr. Chiles acknowledged that as a result of Arizona Luxury’s failure to pay the civil penalty in Case No. 2011-693, the Registrar revoked its License No. CR21.247262 on September 28, 2011, and as a result of the final order in Case No. 2012-591, revoked the license again on July 5, 2012.[24] 20. Mr. Chiles testified that Mr. Genereux worked on all the jobs for which he signed a Project Information form, but that he could not remember the exact dates that Mr. Genereux worked and that the dates were approximate. Mr. Chiles could not remember whether Mr. Genereux worked on Ms. Cink’s or Mr. Stricklin’s jobs. Mr. Chiles could not remember whether Mr. Genereux was working for Arizona Luxury or another contractor when Arizona Luxury’s license was suspended or revoked. 21. Mr. Chiles testified that he was 100% certain that Mr. Genereux had the experience required for licensure and that the complaints in Case Nos. 2011-692 and 2012-591 were not against Mr. Genereux. Mr. Chiles testified that he did not appear at the jobsite inspection in Case No. 2011-692 and did not answer the Citations and Complaints in Case Nos. 2011-692 and 2012-591 because he was winding down Arizona Luxury’s business and doing other things. 22. Mr. Mathews testified that it was not clear who did the work that led to the complaints in Case Nos. 2011-692 and 2012-591 and the revocation of Arizona Luxury’s license. Mr. Mathews noted that based on Mr. Chiles’ testimony, it was also not clear how closely Mr. Chiles supervised Mr. Genereux or whether Mr. Chiles had actual first-hand knowledge of Mr. Genereux’s work. Mr. Genereux’s Experience with Centurion Stone/StoneFace 23. The Registrar does not have a License No. 231702, which is the license number on the Work Experience Record that Mr. Ross submitted on behalf of Centurion Stone. Mr. Mathews testified that the number appears to be a tax identification number. 24. Mr. Genereux testified that Centurion Stone was a retail supplier of stone and landscaping materials and that between October 2011, and November 2013, when he claimed experience with Centurion Stone, he was actually working for StoneFace Creations LLC, License No. CR31.227287 (“StoneFace”), which had the same owners as Centurion Stone. StoneFace’s qualifying party and member is Christopher Shawn Ross.[25] 25. Mr. Gustafson testified that he called Mr. Ross to verify Mr. Genereux’s claimed experience and that Mr. Ross said that while Mr. Genereux was working as an intern for StoneFace between 2011, and 2013, he worked approximately ten to fifteen hours a week. 26. Mr. Genereux submitted a letter from Mr. Ross that stated as follows: Brent Genereux said that his license was declined stating that the [Registrar] contacted me and said that I said he only interned 10-15 hours per week. Which is not correct, I was contacted by the ROC and the lady verified his work duties and the types of jobs done, hours per week was never brought up at all during our conversation. Brent indeed interned for StoneFace Creations LLC 40+ hours per week from October 2011 through November 2013 and the job duties he listed on the application are correct. Brent was great at what he did and always went above and beyond to make the customer happy and complete the job.[26]

27. StoneFace has CR31 license for masonry. Mr. Gustafson testified that a CR31 license is a dual license classification for masonry that combines former commercial L-31 and residential C-31 license classifications. A.A.C. R4-9-102(A) sets forth the scope of an L-31 license as follows: L-31 MASONRY Installation of brick, concrete block, adobe units, stone, marble, slate, or other units and products common to the masonry industry, including mortarless type masonry products. Installation of grout, and caulking. Tuck pointing, sand blasting, mortar washing, parging, cleaning, and welding of reinforcing steel related to masonry construction.

A.A.C. R4-9-103(A) sets forth the scope of a C-31 license as follows: C-31 MASONRY Installation of, with or without mortar, stone, structural glass, brick, block, baked clay, or other products common to the industry. This scope includes all C-31R subclassifications. C-31R Flagstone C-31R Stone Masonry

28. Mr. Genereux on behalf of Applicant submitted an application for a CR21 landscaping and irrigation license, which is a dual license that allows the scope of work formerly allowed under the scopes of the commercial L-21 and residential C-21 license classifications. A.A.C. R4-9-102(A) sets forth the scope of an L-21 license as follows: L-21 LANDSCAPING AND IRRIGATION SYSTEMS Treat, condition, prepare, and install topsoil. Plant all decorative vegetation. Excavate, trench, bore, backfill and grade as necessary for installation of landscaping and irrigation systems. Landscaping includes installation of non- loadbearing slabs, walkways and areas using concrete, brick, stone, or gravel; wooden decks; decorative garden walls, fences and screens up to 6 feet in height; retaining walls up to 3 feet in height; and all other materials and equipment common to the industry.

Excluded are cast-in-place or tilt concrete; load bearing walls for structures; and perimeter fencing along property lines or boundaries. Install, repair, and maintain irrigation systems to distribute water for the purpose of irrigation, dust and soil erosion control using equipment, materials, and fittings common to the industry. This includes electrical control panels and apparatus which are an integral part of the irrigation system. Connections to potable water lines, installation of backflow prevention devices, installation of hose bibs and installation of service lines from source of supply are permitted only when they are an integral part of the irrigation system. Installation of electric wiring and related fixtures of 110 volts or less for landscaping projects is included. All electrical work is limited to exterior use and only that work necessary to complete a landscaping project. If necessary, a new circuit may be added to the existing service panel or sub-panel. Excluded is the installation of a new service panel or sub-panel.

A.A.C. R4-9-103(A) set forth the scope of a C-21 license as follows: C-21 LANDSCAPING AND IRRIGATION SYSTEMS Preparation and alteration of land for horticulture and arboriculture. Installation of irrigation systems and controls. Carpentry is limited to decorative fences and screens, planter boxes, and plant tubs common to the industry. Excluded are retaining walls over 3 feet, decorative walls or fences over 6 feet, perimeter walls, fences, and load bearing slabs and walkways.

If necessary, a new circuit may be added to the existing service panel or sub-panel. Excluded is the installation of a new service panel or sub-panel. This scope includes all C-21R subclassifications. C-21R Landscaping C-21R Irrigation Systems

29. Mr. Mathews testified that A.R.S. § 32-1122(F)(1)’s experience requirements protect the health, safety, and welfare of the public by ensuring that the individual who will act as the licensee’s qualifying party can perform its scope of work in a way that will not harm the public. Therefore, experience working as a plumber or mason does not qualify a person for a landscape and irrigation systems license. 30. On November 23, 2011, Mr. Ross on behalf of StoneFace filed an Application to Inactivate State Contractor’s License with the Registrar for its License No. K-31.227287-D. The inactivation form stated that “[t]he holder of an inactive license shall not act as a contractor.”[27] On November 29, 2011, the Registrar sent StoneFace a Certification of Inactive Status that stated in bold capital letters, “DURING THE PERIOD OF INACTIVE STATUS, LICENSEE SHALL NOT ENGAGE IN CONTRACTING.”[28] Mr. Ross did not submit an Application to Reinstate Inactive Contractor’s License for StoneFace’s license until September 26, 2013.[29] 31. Mr. Mathews testified that although StoneFace existed between November 2011, and September 2013, it was not allowed to perform construction. Mr. Mathews testified that the Registrar could not credit a license applicant’s claimed work experience performed for a licensee that held a different license classification whose license was in an inactive status for the times that the work was allegedly performed. / / / / CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[30] 2. Applicant bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence.[31] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[32] 3. The Registrar is not required to credit any and all experience claimed by an applicant’s qualifying party. Instead, to protect the public, the Registrar must verify the experience claimed by a license applicant’s qualifying party. Given the status of Arizona Luxury’s and StoneFace’s licenses during the time that Mr. Genereux claimed he was working for them, for the reasons stated by Mr. Mathews and Mr. Gustafson, Mr. Genereux failed to establish that he possesses the requisite four years’ experience that A.R.S. § 32-1122(F)(1)[33] requires to perform contracting work within the scope of a CR21 license classification in a professional and workmanlike manner. 4. “[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.”[34] Grounds exist under A.R.S. § 32-1122(F)(1) to deny Applicant’s Pending License No. CR21-294615-D. On this record, Mr. Genereux failed to establish that he possesses the requisite experience for the Registrar to grant Applicant’s application for a contractor’s license to avoid exposing the public to an unreasonable risk of harm. / / / / RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order, the Registrar’s denial of Applicant’s application for a contractor’s license be affirmed. 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, March 10, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 2. [2] The Registrar’s Exhibit 1 at 3. [3] Id. at 4. [4] See id. at 5. [5] See id. at 6. [6] See id. at 7. [7] See id. at 8. [8] See id. at 9. [9] See id. at 10. [10] See id. at 11. [11] See id. at 12. [12] See id. at 13. [13] See id. at 14. [14] See id. at 15. [15] See the Registrar’s Exhibit 2. [16] Id. at 3. [17] A.R.S. § 32-1121(A)(14) includes among the persons who are not required to be licensed the following: Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items . . . is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. . . . [18] See the Registrar’s Exhibit 5. [19] 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.” [20] Former A.R.S. § 32-1154(A)(23) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” This statute has been renumbered as A.R.S. § 32-1154(A)(22). [21] See the Registrar’s Exhibit 3. [22] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [23] See the Registrar’s Exhibit 4. [24] See the Registrar’s Exhibit 5. [25] See the Registrar’s Exhibit 6. [26] Applicant’s Exhibit B. [27] The Registrar’s Exhibit 7 at 1. [28] Id. at 2. [29] See id. at 3. [30] See A.R.S. § 32-1122. [31] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [32] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [33] A.R.S. § 32-1122(F)(1) requires, in relevant part, that a qualifying party must “[h]ave had a minimum of four years' practical or management trade experience, at least two of which must have been within the last ten years, dealing specifically with the type of construction, or its equivalent, for which the applicant is applying for a license.” [34] Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981); see also Laws 1985, Ch. 334, § 1 (“The goals and objectives of the registrar of contractors are to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in residential construction . . . .”).

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