ALJDEC decisions subject to certification as final

2016A-594-ROC · Registrar of Contractors · 2016-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 18, 2016 held open until September 8, 2016 APPEARANCES: James and Connie Reeks, Complainants; Robert and Jenna Blankenship, Respondent’s representatives; Stephen Lawton, Registrar of Contractors Investigator ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against Respondent, Complainants could not meet their burden of proof because the greater weight of the evidence established that the complaint information was not reliable. The Registrar of Contractors relies on complaints to carry out some of the mandates of the office. When anyone attempts to use the complaint process inappropriately, it undermines the Registrar’s ability to perform the duties that the citizens of Arizona depend on to ensure that the buildings in which they live, work, and play are safe. When that process is compromised, it is appropriate to dismiss the complaint in its entirety. FINDINGS OF FACT 1. The parties in this matter entered into a contract for Respondent to install pavers, install a barbeque with storage, stain a patio, and remove some plants at Complainants’ home. Complainants filed a complaint with the Registrar of Contractors when they were unsatisfied with the results of Respondent’s work. 2. Stephen Lawton, a Registrar of Contractors Investigator, testified that he received the complaint on February 19, 2016 and conducted a job site inspection on March 29, 2016 with both parties present. On April 25, 2016, Investigator Lawton issued a Directive from the Registrar directing Respondent to correct 5 items. He noted during his testimony that Respondent would not be permitted to correct any work that was outside the scope of the license. 3. Investigator Lawton testified that on June 1, 2016, he conducted a compliance inspection but he found that the 5 items had not been corrected. He noted that Respondent told him that Respondent did attempt to make corrections. 4. The Directive from the Registrar ordered Respondent to repair or complete the following items:

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 05/13/16. You are hereby directed to remedy the following violations by the appropriate means:

1. Concrete patio stain has drips, shoe prints [and] spots. Correct by Appropriate Means with an appropriately licensed contractor. 2. Barbeque island has veneer stone on the face and has broken stone and areas where the mortar is missing. Correct by Appropriate Means with appropriaitely licensed contractor. 3. Pavers were not installed correctly per industry and the workmanship standards of the ROC. Correct by Appropriate Means. 4. Sprinkler system does not work properly. Correct by Appropriate Means. 5. Remove stain from landscaping rocks and stucco of the house. Correct by Appropriate Means.

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

6. Regarding Item 1, Mr. Blankenship, Respondent’s owner, testified that Complainants were informed that the stain would not be able to stain the concrete if there are pre-existing stains and footprints on it. He said that when he applied the stain he noticed that there was a shoe print and other marks that didn’t stain properly. He said he immediately notified Complainants’ son, who was home at the time, to come look at it. He said the son agreed that it was not Respondent’s fault that the stain did not take due to pre-existing conditions. Mr. Blankenship did not dispute that staining the patio was outside the scope of his license but he maintained that he was not aware that he had exceeded the scope of his license by staining the patio. 7. Regarding Item 2, Mr. Blankenship testified that he thought he was allowed to work on a barbeque cabinet but could not install the actual barbeque. He said Investigator Lawton informed him that he was incorrect about that and he did not dispute it. He stated that he did do some repairs on the barbeque. 8. Regarding Item 3, Mr. Blankenship noted that the Registrar of Contractors standards regarding how tight pavers should fit was not realistic because the pavers, while not officially defined as “tumbled” pavers, have rounded edges like tumbled pavers and it is not realistic to demand that they fit as closely at the top surface as regular pavers, which is the standard that Investigator Lawton applied. He also said that he made corrections following the Directive and the pavers looked nice when he left, but, when he returned for the compliance inspection, the sand used to fill in between the pavers had been removed and this created an unsightly appearance. Complainants denied vacuuming the sand from between the pavers, but their testimony later proved to be less reliable than Mr. Blankenship’s. 9. Regarding Item 4, Mr. Blankenship testified that the sprinkler system referred to in the Directive is actually a drip system, not a sprinkler, and it was disconnected at Complainants’ request. Nevertheless, after the Directive was issued, he connected it and made sure that the tree it fed was receiving water. Unfortunately, he found that when he went for the compliance inspection, it had been disconnected again. Complainants testified that Respondent did not connect the water to the tree and that the tree died as a result. 10. Regarding Item 5, Mr. Blankenship testified that the stucco of the house could not be stained because paint does not accept the stain he uses. Complainants insisted that Respondent over-sprayed stain onto the home and that Respondent should be required to pay to have the entire home repainted. Mr. Blankenship later submitted photos of the home that were taken prior to his work. The photos show that the lower part of the paint on the home was already dirty before Respondent began working. There is a perceivable difference between the appearance of the paint on the home before and after Respondent stained the patio. However, it appears most likely that the stain may have gotten on the dirt on the home and did not actually stain the paint. 11. Regarding Item 5, Mr. Blankenship also stated that he cleared out most of the accidentally stained rocks next to the patio and covered them with new rock so that the ground level stained rocks no longer showed. However, when he returned for the compliance inspection, someone had removed the rock that he had added and the stained rock was exposed again. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. § 41-1092.07(G)(2). 2. The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3)(concerning A.A.C. R4-9-108), (12)(specifically A.R.S. § 32-1158(B)), (16) and (22). 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. Complainants were unable to establish a violation of this provision of the law due to their inability to submit credible testimony at hearing. Complainants alleged that their home has to be repainted while the photos clearly show that their paint was stained or dirty and the home was in need of painting before Respondent even began the job, though a small amount of stain may have clung to the dirt on the home.[1] Further, Mrs. Reeks alleged that a tree died as a result of the loss of water to it. It is unlikely that an established tree would die from lack of water in such a short time. However, it is even more unlikely that it was Respondent’s fault if the tree in fact died. Complainants were aware that water was not going to the tree because they complained about it. It was up to them to ensure that the tree received water until they were sure of the source. Rather than minimizing their damages, however, the greater weight of the evidence established that they tried to make it worse. Because Complainants’ testimony wasn’t credible, they did not establish a violation of A.R.S. § 32-1154(A)(3). 5. A.R.S. § 32-1154(A)(12) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. A.R.S. § 32-1158(B) requires contractors to utilize contracts with certain information on them. The Registrar of Contractors issued a warning letter on this issue. The contract provided by Respondent after the hearing, which was in the form of an estimate, contained more information than was available for review at the time the complaint was filed.[2] If the Registrar finds that the new contract should contain additional information, a separate enforcement action has taken place in the form of a warning letter. Further disciplinary action associated with this complaint is not warranted. 6. A.R.S. § 32-1154(A)(16) provides grounds for suspension or revocation of a contractor’s license for knowingly contracting beyond the scope of the license. A.A.C. R4-9-104 provides as follows regarding the scope of Respondent’s license:

LANDSCAPING AND IRRIGATION SYSTEMS

This classification allows the licensee to treat, condition, prepare, and install: 1. Topsoil 2. Plants and decorative vegetation 3. Non-loadbearing concrete 4. Uncovered patios, walkways, driveways made of brick, stone, pavers or gravel 5. Wooden decks no higher than 29 inches above finish grade 6. Decorative garden walls up to six feet from finish grade 7. Fences and screens up to six feet from finish grade 8. Retaining walls up to three feet from the finish grade of the lower elevation 9. Wood-burning fire pit no higher than 16 inches above finish grade 10. Low voltage landscape lighting 11. Water features that are not attached to swimming pools; including any necessary: electrical wiring of 120 volts or less, connection to potable water lines, backflow prevention devices, hose bibs, excavating, trenching, boring, backfilling, or grading 12. Irrigation systems, including any necessary: electrical wiring of 120 volts or less, connection to potable water lines, backflow prevention devices, hose bibs, excavating, trenching, boring, backfilling, or grading

This classification does not allow the licensee to install, contract for, or subcontract new electrical service panels, gas or plumbing lines, blasting, outdoor kitchens, gazebos, room additions, swimming pools, pool deck coatings, barbeques, concrete driveways, load bearing walls, or perimeter fencing. [Emphasis added.]

7. Respondent argued at hearing that he only constructed a cabinet for a barbeque that Complainants purchased. This would not be permitted under the scope of Respondent’s license because a cabinet for a barbeque would have to bear the load of the barbeque. However, the greater weight of the evidence established that Respondent was not aware of this at the time he contracted to do it. Complainants did not establish that Respondent knew that staining the patio was outside the scope of the license either. In addition, it appears that staining an uncovered patio could be included in the scope of Respondent’s license if stain is to be considered a treatment. It was not established that Respondent violated A.R.S. § 32-1154(A)(16) because no evidence was presented to establish that Respondent was aware that staining a patio and building a barbeque cabinet are beyond the scope of Respondent’s license. 8. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. Respondent’s testimony that Complainants vacuumed out the sand from the pavers, removed decorative rock, and disconnected the drip line after Respondent connected it was credible. Therefore, Complainants could not establish a violation because their evidence was not shown to be reliable. 9. In addition to determining the weight of the evidence, an Arizona Administrative Law Judge is required to apply equitable principles in making her decisions.[3] One such equitable principle is the “doctrine of unclean hands,” which prohibits a party from benefitting from a situation in which they themselves have acted wrongly while accusing another. 10. Unfortunately, such actions not only go against the common law, they also undermine the ability of the Registrar to regulate the contracting industry properly and fairly because they wrongfully attempt to shift responsibility onto an innocent party and leave the Registrar vulnerable to criticism. In order to discourage abuse of the Registrar’s complaint process, it is important to dismiss complaints such as this in a manner that takes care not to have any negative effects on the victim’s license or business so long as the contractor is otherwise not at risk of harming the public. 11. It does not appear that Respondent requires disciplinary action on this complaint in order to bring his practices within the regulations of the Registrar. By dismissing this complaint, the Registrar still has all of its alternative enforcement powers, such as warning letters and orders to cease and desist, should the Registrar find it appropriate to use them. 12. Based on considerations of the weight and reliability of the evidence and the equities of the situation, it appears that the best practice in this instance is to dismiss the complaint altogether and decline to impose any discipline against Respondent. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaint in this matter be dismissed in its entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, September 26, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit B. In comparison with the photo in the complaint file (Insp Formal Complaint Misc 1.pdf in the Registrar’s file), it appears the only area where stain stuck to the home was where it touched the dirt that was already on the home. [2] See Exhibit B. [3] Seitz v. Industrial Commission of Arizona, 184 Ariz. 599, 603 (Ariz. Ct. App., Div. 1, 1995) (holding that the failure of an Administrative Law Judge to apply equitable principles was “arbitrary, capricious, and contrary to both equity and law”).

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