ALJDEC decisions subject to certification as final

2016A-3235-ROC · Registrar of Contractors · 2017-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Janice L. Celotti,

COMPLAINANT,

v.

Estrella Valley Landscapes, LLC,

License No: 275341,

RESPONDENT.

No. 2016A-3235-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2017

APPEARANCES: Janice L. Celotti for Complainant; Mary Jane Nellie Rodriquez for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On September 15, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on November 9, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

The matter was continued and the hearing was conducted on January 18, 2017.

Respondent Estrella Valley Landscapes, LLC (“Estrella Valley”) holds license number 275341 issued by ROC. Mary Jane Nellie Rodriquez is Estrella Valley’s qualifying party. Estrella Valley’s license was revoked on July 5, 2016.

Complainant Janice L. Celotti owns a home at 17890 W. Desert Wind Drive in Goodyear. Her sister, Lorraine Celotti owns the home next door at 17896 W. Desert Wind. Janice Celotti is a licensed attorney in Arizona.

Janice and Lorraine each hired Estrella Valley. In both cases, the work initially was to be performed at locations other than the Desert Wind addresses. The record does not include any signed contract for the work at Janice Celotti’s house at 17890 W. Desert Wind Drive, but does include an unsigned “Estimate” for work to be completed at 17584 W. Fairview in Goodyear.

On May 12, 2015, Lorraine filed with ROC a complaint against Estrella Valley. ROC designated that matter as Case No. 2015-2098.

Although Lorraine filed the first complaint, Janice and she intended that complaint to cover both their houses, and, for some of the time pertinent to this matter, ROC treated the first complaint as though it did involve both houses. Many of the documents in ROC’s administrative record and many of the exhibits offered into evidence by Janice Celotti show only Case No. 2015-2098 and not the case number for this matter, or they show only Lorraine’s name or address, but are relevant to each home.

On June 18, 2015, Mr. Lawton inspected both of the houses. There was no representative for Estrella Valley present at those inspections.

Although ROC had notified Estrella Valley that there was going to be an inspection of Lorraine’s property on June 18, 2015, Mr. Lawton provided credible testimony that Estrella Valley was never provided notice that an inspection of Janice’s property would also take place on June 18, 2015.

On August 25, 2015, ROC issued to Estrella Valley a Directive ordering it to remedy its failure to obtain the required permit from City if Goodyear.

On September 14, 2015 ROC issued to Estrella Valley a second Directive ordering it to remedy six conditions: permit required; planter has mortar wash instead of stucco; landscaping irrigation system leaks; broken irrigation heads; concrete cracking at non control joints; and spalling on the sidewalks. The second Directive specifically referenced both addresses.

Mr. Lawton conducted a compliance inspection on October 21, 2015. A representative for Estrella Valley was present at that time.

At some point, Janice Celotti learned that she would need to file a new complaint to have the issues at her house (further) addressed by ROC. There is conflicting information in the record as to when Janice was made aware of this need.

In what ROC styled as an Amicus Brief, it informed the tribunal that during the jobsite compliance inspection on October 21, 2015, Janice was informed that she would be required to submit a complaint related solely to her house. Janice Celotti and ROC investigator Stephen Lawton each testified that Janice was not made aware of the need to file her own complaint until she and Loraine made a recovery-fund claim (or claims), which would have been sometime in 2016. This testimony is not consistent with the administrative record, which includes two copies of a complaint signed by Janice Celotti on June 18, 2015.

The first copy of the June 18, 2015 complaint was marked received by INSPECTIONS on October 26, 2015 and included a cover letter from Lorraine Celotti dated October 22, 2015. In her cover letter to Mr. Lawton, Lorraine Celotti acknowledged meeting on October 21, 2015 and wrote “Per your request, I am mailing to you the second complaint form for Janice’s property and the original letter we sent.”

The second copy of Janice’s June 18, 2015 complaint was marked received by INVESTIGATIONS on August 25, 2016.

On August 26, 2016, ROC issued the Citation in this matter.

Through the Citation, ROC alleges that Estrella Valley may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), (A)(11), (A)(12), and (A)(16). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Estrella Valley’s license.

According to ROC’s “Amicus Brief,” it did not conduct an inspection at Janice Celotti’s house after receiving her complaint on August 25, 2016 because Mr. Lawton had inspected Janice’s house on June 18, 2015.

Only the completed ROC complaint form itself was offered into evidence (Exhibit A, pp. A-6 and A-7). As offered into evidence, Janice Celotti’s complaint alleges that Estrella Valley: did electric work outside the scope of its license; installed a Ramada light that was or became a hazard, exposed wiring; installed or included an outdoor kitchen with gas line and electric; installed incorrect artificial grass; that stucco work was cracking on planters because there was no water repellant; and that concrete was cracking.

In its answer filed on September 12, 2016, Estrella Valley acknowledged by installing the outdoor kitchen, it performed work outside the scope of its license.

At the hearing, Ms. Rodriquez acknowledged that she had no personal knowledge of the workmanship at the property.

Mr. Lawton testified that the Ramada light/fan had been repaired before his June 18, 2015 inspection and he could not determine whether there had been a workmanship violation.

In its answer and at the hearing, Estrella Valley took the position that it had paid to have the Ramada light/fan repaired. Janice Celotti testified that Estrella Valley had not paid to have the light/fan repaired, but rather she had. Neither party offered definitive proof of payment in support of their position.

There was no substantial evidence to show that the Estrella Valley had installed the incorrect artificial grass.

Mr. Lawton testified that the planters at issue had not been covered with stucco. This is not consistent with Janice Celotti’s complaint in which she alleged that the stucco work on the planters was cracking because there was no water repellant.

Mr. Lawton’s jobsite inspection notes and his compliance jobsite inspection notes show that the cracks in the concrete were within ROC’s tolerances and not a violation of the workmanship standards. At this hearing, Mr. Lawton testified to the contrary and said that there was compound cracking in violation of the applicable standard.

Mr. Lawton testified that there was spalling of the concrete at Janice Celotti’s house, which in his opinion was a violation of the workmanship standards.

Janice Celotti alleged that Estrella Valley had sent to her “an unannounced bill,” which she believes was in violation of Ariz. Rev. Stat. section 32-1158. At the hearing however, Estrella Valley had entered into evidence emails between it and Janice Celotti showing that she was made aware that there was an additional amount owing and that she had requested that Estrella Valley provide an accounting, which Estrella Valley did provide to her.

At the hearing, in her opening statement, Janice Celotti made reference to alleged deficiencies in an irrigation system at her house. When asked to show where that alleged defect was set out in her complaint, Janice could not identify that as an issue, but stated that she thought it was included in Loraine’s complaint or the letter Loraine had submitted with her complaint.

Although the Administrative Law Judge informed the parties that the irrigation system was not therefore properly not within the scope of the hearing, he elicited testimony from Mr. Lawton on that subject.

Mr. Lawton testified that he had verified that there was leakage in the irrigation system, and that there were broken irrigation heads. Mr. Lawton acknowledged that he did not know how the irrigation heads were broken, but he assigned fault to Estrella Valley because it was not at the inspection and so did not dispute that it was at fault.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the registrar.

*****

11. Failure of a contractor to comply with any safety or labor laws or codes of the federal government, state or political subdivisions of the state.

12. Failure in any material respect to comply with this chapter.

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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

Ariz. Rev. Stat. section 32-1124(B) provides in pertinent part that:

The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and ... shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.

Ariz. Rev. Stat. section 32-1155(C) provides that:

The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either:

1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar.

2. The contractor's work has been subject to neglect, modification or abnormal use.

Ariz. Rev. Stat. section 32-1158(B) sets out the minimum elements of construction contracts.

The preponderance of the evidence shows that ROC did not provide Estrella Valley with written notice of its June 18, 2015 inspection. Consequently, ROC was prohibited by statute from issuing a Citation related to any alleged workmanship deficiencies and any alleged failure to comply with any applicable building codes. Ariz. Rev. Stat. § 32-1155(C). As such, it has not been shown that Estrella Valley violated Ariz. Rev. Stat. sections 32-1154(A)(2) or (A)(3).

The preponderance of the evidence does not show that Estrella Valley violated Ariz. Rev. Stat. section 32-1154(A)(11).

The preponderance of the evidence shows that Estrella Valley violated Ariz. Rev. Stat. section 32-1124(B) in that it failed to include “ROC” and its license number in all correspondence, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12).

There was no contract for the work at issue entered into evidence. The preponderance of the evidence does not show that Estrella Valley violated Ariz. Rev. Stat. section 32-1158(B).

Estrella Valley acknowledges that it contracted beyond the scope of its license in violation of Ariz. Rev. Stat. section 32-1154(A)(16).

Considering the proven violations and the facts and circumstances of this matter, Estrella Valley’s license should be disciplined.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter,

Estrella Valley Landscapes, LLC’s license number 275341 is suspended for one day.

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 is forty days after the date of that certification.

Done this day, February 3, 2017.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors