ALJDEC decisions subject to certification as final

2015A-664-ROC · Registrar of Contractors · 2016-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 2015, at 3:00 p.m. APPEARANCES: Jim Doyle (“Complainant”) appeared on his own behalf; Soulliere Decorative Pavers LLC (“Respondent”) appeared through Scott Soulliere (“Mr. Soulliere”), its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On April 21, 2006, the Registrar issued License No. CR31.219199-D for dual masonry to Respondent. Respondent’s CR31 license allows it to install brick, concrete block, adobe units, stone, marble, slate, or other units and products common to the masonry industry, including mortarless type masonry products, to install grout and caulking, and to perform tuck pointing, sand blasting, mortar washing, paging, cleaning, and welding of reinforcing steel related to masonry construction on residential and commercial projects.[1] 2. On or about February 12, 2015, Complainant filed a complaint with the Registrar, alleging that Respondent had installed synthetic turf at Complainant’s residence at 2947 N. 70th Ave., Peoria, Arizona 85383, and that the turf was poorly trimmed, mismatched, and generally had a poor appearance. 3. The Registrar assigned the complaint to its Investigator, Tim Pennington (“Investigator Pennington”). Investigator Pennington performed a jobsite inspection and on March 26, 2015, issued a Directive to Respondent to perform certain repairs on or before 5:00 p.m. on April 11, 2015. The Directive provided in relevant part as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standard (see A.A.C. R4-9- 108). You are hereby directed to remedy the following violations by the appropriate means:

1. [Seams] are poorly put together 2. Edges not trimmed correctly 3. Two different colors patched together . . . .

You are advised that if your license is suspended for administrative reasons 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. . . . .

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.

4. Respondent failed to correct the deficiencies to Complainant’s satisfaction and he requested a hearing. On July 16, 2015, the Registrar issued a Citation against Respondent’s license, 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)(22). 5. Respondent filed a timely answer to the Citation, stating that it has replaced the entire synthetic lawn at Complainant’s house and that until it received the Citation, it did not know that there was any problem with the correction. Respondent denied violating the charged statutes. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. An evidentiary hearing was held on December 21, 2015. Complainant submitted one exhibit, testified on his own behalf, and presented the testimony of Investigator Pennington. Respondent submitted one exhibit and presented the testimony of Mr. Soulliere. Hearing Evidence 7. Complainant testified that Respondent did a good job on the hardscape that it installed but that its installation of the synthetic turf was poor. 8. Investigator Pennington performed a compliance inspection on April 28, 2015, and took eight photographs of Respondent’s attempts to repair the synthetic turn at Complainant’s residence.[2] Investigator Pennington’s compliance inspection report provided in relevant part as follows: Compliance Findings: Respondent replaced the turf [himself] and from the looks of his work he should not be installing this type of material, is also out of scope of his license. Not corrected properly.

1. [Seams] are poorly put together Picture 7 [seam] is poorly done still

2. Edges not trimmed correctly Picture 2 gouge in turf edge Picture 3 not cut tight to edge Picture 4 gouge in turf edge Picture 5 not cut tight to edge in corner Picture 6 not cut tight to edge

3. Two different colors patched together This item has been corrected Picture 8 whole area of turf

9. Investigator Pennington testified that Respondent’s license was suspended at the time of the initial March 26, 2015 jobsite inspection. Investigator Pennington testified that Respondent did not attend the initial jobsite inspection and that although he called Respondent and left a message to attempt to discuss the complaint and the scope of Respondent’s license, Respondent did not return the call. 10. Investigator Pennington testified that he saw at the April 28, 2015 compliance inspection that Respondent had made an effort to comply with the March 26, 2015 Directive, but that the turf still had poor seams and the turf was not properly trimmed at the edges. Investigator Pennington testified that the gouges at the edges of the turf appeared worse than at the initial jobsite inspection and that the pieces of synthetic turf were still poorly put together. Investigator Pennington explained that what he called gouges were places where Respondent had made bad cuts into the material and laid the material down to fit in the area, but that the gouges did not appear to be deliberate. 11. Investigator Pennington testified that installation of synthetic turf was beyond the scope of Respondent’s CR31 masonry license. Investigator Pennington testified that a general contractor’s or landscaping license was required to install synthetic turf. 12. Investigator Pennington testified that the seams of synthetic turf should not be visible and should match like a carpet. The Registrar applies that same workmanship standard to synthetic turf seams that it applies to carpet seams. Seams “should be tightly fitted with no gaps or overlaps in the seam”; if seams are excessively visible, the contractor “should remake seam if gaps or overlaps are present.”[3] Investigator Pennington testified that he has seen seams in synthetic turf disappear and that Respondent’s seams did not look professional. 13. Respondent submitted a photograph taken immediately after its repairs that showed that the seam at Complainant’s project was barely visible.[4] Complainant submitted a photograph that was taken some time after Respondent’s repair that showed a clearly visible seam.[5] 14. Investigator Pennington testified that Respondent used a power broom after it reinstalled the turf, which would cause loose flakes of turf material to cover the seam temporarily. After the flakes settled, however, the seam again would be visible. 15. Complainant testified that after Respondent repaired the seam, it used a power broom on the seam. Although the seam disappeared for a while, it reappeared. 16. Mr. Soulliere testified that the odd shape of Complainant’s project required Respondent to install the synthetic turf with a seam and that when Mr. Soulliere left, the repairs looked good. Mr. Soulliere testified that he used a light broom on the seam. Mr. Soulliere testified that the seam is tight and is nailed every 3”. Mr. Soulliere testified that Respondent followed the specifications for the turf and that it cannot be installed to look any better. 17. Inspector Pennington testified that, in addition, the seam was uneven and had high and low parts, which did not comply with professional trade standards. 18. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on December 18, 2015, Respondent’s license had been disciplined in two cases, which resulted in a finite suspension between January 29, 2015, and January 30, 2015; a suspension between March 3, 2015, to March 31, 2015, until it complied with the Registrar’s order; a finite suspension between June 5, 2015, and June 19, 2015; and probation from June 20, 2015, until September 17, 2015. In addition, Respondent’s license was administratively suspended between August 30, 2014, and October 14, 2014, for lack of bond; between May 4, 2014, and May 30, 2014, for lack of bond; between May 1, 2014, and June 16, 2014, for non-renewal; between May 1, 2013, and June 11, 2013, for non-renewal; between May 1, 2012, and July 2, 2012, for non-renewal; and between May 1, 2010, and May 17, 2010, for non- renewal. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[6] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[7] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[8] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] 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.”[10] 4. Complainant established by a preponderance of the evidence that Respondent violated A.R.S. § 32-1154(A)(3),[11] namely A.A.C. R4-9- 108,[12] in its installation of the synthetic turf in the ways noted on the March 26, 2015 Directive. 5. Complainant also established that Respondent failed to perform appropriate corrective work to comply with the Directive without legal excuse in the remaining deficiencies noted in Investigator Pennington’s April 28, 2015 compliance inspection report. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(22).[13] 6. Respondent performed work that was beyond the scope of its CR31 license, may have performed repair work that was beyond the scope of its license while the license was suspended as discipline in another matter, and has a generally poor license history. These factors are considered in aggravation of the penalty. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. CR31.219199-D of Respondent Soulliere Decorative Pavers LLC shall be suspended for a period of thirty calendar days. After the suspension is lifted, it is recommended that Respondent’s license shall be placed on disciplinary suspension for a period of 180 calendar days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the final order, the shall Registrar revoke Respondent’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. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, January 7, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.A.C. R4-9-104(B) (specialty dual licenses classifications and scopes of work); A.A.C. R4-9-102(B) (commercial contracting license classifications and scopes of work); A.A.C. R4-9-103(B) (residential contracting license classifications and scopes of work). [2] See the Registrar’s electronic file at Inv Photographs1.pdf. [3] The Registrar’s Workmanship Standards for Licensed Contractors at 8 (June 2009). [4] See Respondent’s Exhibit A. [5] See Complainant’s Exhibit 1. [6] See A.R.S. § 32-1154(A). [7] 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). [8] See A.A.C. R2-19-119(B)(2). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999). [11] 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.” [12] 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.” [13] A.R.S. § 32-1154(A)(22) includes 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.”

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