ALJDEC decisions subject to certification as final

2016A-2278-ROC · Registrar of Contractors · 2017-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Terry Irl Hamblin,

COMPLAINANT,

v.

L A Development Inc.,

License No: 166756, 175731

RESPONDENT.

No. 2016A-2278-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2017

APPEARANCES: Complainant Terry Irl Hamblin appeared on his own behalf. Larry Leonard, Qualifying Party and Vice President, and Linda Leonard, President, appeared on behalf of Respondent L A Development Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

L A Development Inc. (Respondent) is the holder of License No. 166756 and 175731 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 22, 2015, Terry Irl Hamblin (Complainant) entered into a contract with Respondent to install artificial turf.

On or about June 28, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Russell Reed. After a jobsite inspection, Investigator Reed issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your licenses[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 1, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Seams in turf are visible.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent returned to the jobsite and performed corrective work. After the deadline in the directive expired, Investigator Reed was notified the corrective work had been performed. Investigator Reed performed a compliance jobsite inspection on August 4, 2016, and noted that the seams in the artificial turf were still visible and some areas still had visible subgrade from a standing height.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Reed testified that the Registrar does not have workmanship standards specific to artificial turf, but he views it similarly to carpet installation as far as visible seams are concerned. Investigator Reed indicated he performed a prehearing inspection prior to the hearing and observed that the seams were much better, but there was a visible color difference from a distance and up close the seams were still visible. Investigator Reed stated there was a day and night difference between the first jobsite inspection and the prehearing inspection and acknowledged that it is very hard to make a perfect seam. Investigator Reed testified that he used to install artificial turf and admitted that the project would probably pass any other investigator’s inspection.

Complainant testified that immediately after Respondent performed the corrective work, the seams looked much better, but that the seams would deteriorate over time. Complainant indicated that he had an expert come out to inspect the turf who posited that the product may be shrinking and/or deteriorating.

Mr. Leonard, Respondent’s Qualifying Party and Vice President, testified that the last time Respondent was present at the jobsite and performed the corrective work, the work was perfect and was within industry standards. Mr. Leonard stated that he believed Complainant or someone else pulled the seams apart or otherwise tampered with the seams.

Ms. Leonard, Respondent’s President, testified that when she was on the jobsite overseeing the corrective work, Complainant was verbally abusive to her and called the workers various names. Ms. Leonard stated that she had involved in all kinds of construction projects and been around all types of people and she had never heard such attacks. Ms. Leonard alleged that Complainant called the workers “S.O.B.s” and when she begged him not to treat her workers like that, Complainant came at her yelling at her to “shut your yapping mouth.” Ms. Leonard testified that Complainant was visibly upset when he went into the house, and she was concerned he could return with a weapon. Ms. Leonard asserted she should be able to go on any jobsite and feel safe.

Ms. Hamblin acknowledged that Complainant can get loud when he talks. Ms. Hamblin stated that as soon as Ms. Leonard walked through the gate, she started saying that the workers were good people and kept talking about it. Ms. Hamblin admitted that Complainant asked Ms. Leonard to shut up, then told Ms. Leonard to shut up, then yelled at Ms. Leonard to shut up. Ms. Hamblin asserted that when Complainant realized he needed to get away from Ms. Leonard, he went into the house.

Administrative notice is taken of Respondent’s prior License record on February 6, 2017. Such prior License record reflects that Respondent’s License No. 166756 was first issued on July 2, 2001, and is current. Such prior License record also reflects that there was one open complaint and no prior complaints against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 175731 was first issued on July 2, 2001, and is current. Such prior License record also reflects that there were no open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

Investigator Reed acknowledged that the Registrar does not have workmanship standards for artificial turf and that the work performed probably would have passed any other investigator’s inspection. Therefore, Complainant failed to establish by a preponderance of the evidence that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent completed the corrective work following the Directive being issued. Therefore, Complainant failed to establish that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Terry Irl Hamblin.

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, February 6, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors