ALJDEC decisions subject to certification as final

2016A-2822-ROC · Registrar of Contractors · 2016-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark Steven Davis,

COMPLAINANT,

v.

Coconut Contracting LLC,

License No: 293769, 302509

RESPONDENT.

No. 2016A-2822-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2016

APPEARANCES: Mark Steven Davis appeared on his own behalf. Robert Gruber, Owner and Qualifying Party, appeared on behalf of Respondent Coconut Contracting LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Coconut Contracting LLC (Respondent) is the holder of License No. 293769 and 302509 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 28, 2016, Mark Steven Davis (Complainant) signed a contract with Respondent for, among other things, landscaping plants.

On or about August 2, 2016, the Registrar received a Complaint against Respondent from Complainant alleging some plants had died and Respondent refused to honor the warranty to replace them.

The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra 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 license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 9/7/16.

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

Several plants have died. Any plants subject to the contracted warranty should be replaced per that warranty.

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 replied to the directive and explained why it would not be replacing the plants in question. After the deadline in the directive expired, Investigator Gunstra was notified no corrective work had been performed.

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 Gunstra testified that he observed approximately 30 dead plants in the yard and that he was informed Complainant notified Respondent that the plants were dead or dying before the 90 days warranty provided in the contract expired. Investigator Gunstra also acknowledged that Complainant admitted he had adjusted the irrigation timer on the system.

Complainant testified that the plants at issue were planted in May 2016. Complainant indicated that he notified Respondent that some of the plants were stressed as early as June 2016. The plants at issue then died in July 2016. Complainant admitted adjusting the irrigation timer, but stated that he increased the watering by approximately 40 percent. Complainant asserted that the irrigation could not be the cause of the dead plants because some plants in a zone died while others survived. Complainant testified that Respondent replaced about 20 plants in the front yard, but refused to replace any more plants. Complainant denied being informed that plants that died as a result of the weather would not be covered by the warranty in the contract. Complainant hypothesized that because of a different complaint he had pending against Respondent, Respondent refused to replace the plants because it “just wanted to walk away.”

Mr. Gruber, Respondent’s Owner and Qualifying Party, testified that the Registrar does not have a minimum guarantee on plants, but that Respondent offers a 90 day guarantee as part of its contract. Respondent’s contract provides that “[Respondent] is not responsible for any weather related damage (ie, wind, frost, etc.).” Mr. Gruber asserted that the guarantee does not apply to plants that are replaced under the guarantee. Mr. Gruber stated that he had no way of knowing if Complainant adjusted the irrigation timers correctly. Mr. Gruber acknowledged that some plants in a zone survived while others died, but maintained that some plants are hardier than others and can withstand drier conditions. Mr. Gruber indicated that in June 2016 the area experienced record-breaking heat, resulting in severely dried plants.

Administrative notice is taken of Respondent’s prior License record on December 6, 2016. Such prior License record reflects that Respondent’s License No. 293769 was first issued on August 3, 2015, and is current. Such prior License record also reflects that there was one open complaint and one complaint that resulted in discipline against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 302509 was first issued on December 31, 2015, is current, and has no prior or pending complaints against it. A finite suspension of one day was imposed against both of Respondent’s licenses on November 25, 2016.

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).

The testimony at hearing failed to establish by a preponderance of the evidence that the plants at issue were covered by Respondent’s guarantee in the contract. The plants may have died because of the extreme heat and/or because of Complainant’s adjustments to the irrigation system. Complainant failed to establish the plants were covered by the warranty, and therefore failed to establish 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).

Because the plants at issue were not established to be covered under the guarantee, Respondent was not required to replace any plants. The written directive from the Registrar instructed Respondent to replace plants covered by the guarantee. 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 close the Complainant Mark Steven Davis’ complaint in Case Number 2016-2822.

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, December 6, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors