ALJDEC decisions subject to certification as final

2017A-1722-CHC-ROC · Registrar of Contractors · 2017-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebecca Emily Dalmeida,

COMPLAINANT,

v.

Robert Angelo Cirincione dba,

R C Landscape Services,

License No: 082640

RESPONDENT.

No. 2017A-1722-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2017 at 9:00 am

APPEARANCES: Rebecca E. Dalmeida (“Complainant”), Robert A. Cirincione (“Respondent” for Robert Angelo Cirincione dba, R C Landscape Services), and Russell Reed (“ROC Investigator” for the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) alleged by Complainant and as cited by the Registrar. Testimony and evidence were presented. The Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

Complainant is the homeowner/occupant of property located at 5958 West Topeka Drive, Glendale, Arizona 85308.

Respondent is the holder of Arizona Contractor License No. CR21.082640-D issued by the Registrar. Respondent’s License is current on August 23, 2017.

On or about March 29, 2017, Complainant submitted her Complaint with the Registrar alleging against Respondent thirteen (13) complained of items to include poor workmanship issues.

The parties agreed to commence work based on a proposal dated February 15, 2017. The proposed total amount for the work was $2,279.00. The scope of the work was to include flagstone repair and sealing. The description of work was:

Grout demo at front entry $1,200.00

New grout with silica sand $ 680.00

Sealing of grout and flagstone $ 260.00

Sales tax $ 139.00

Complainant noted on the Complaint the work commenced the first week of March, 2017, and concluded on March 12, 2017. Complainant provided no copies of payments made to Respondent and indicated in her Complaint that “zero” amount was paid to Respondent for work performed.

On or about April 9, 2017, Respondent filed its reply to the Complaint and provided copies of communications taking place between Complainant and Respondent to illustrate his efforts to provide satisfactory workmanship. Included was a receipt for $135.73 that Respondent paid for penetrating topical sealant that he asserts Complainant suggested be applied to the flagstone.

ROC Investigator Russell Reed was assigned to investigate the 13 item Complaint, and performed a Jobsite Inspection on April 20, 2017. Of the 13 items, ROC Investigator substantiated the following three (3) items:

Complaint Item 1: Written estimate / no signed contract to remove and replace damaged grout flagstone patio/walkway

Investigator’s Observation: Contract submitted in complaint is below standards of the ROC.

Governing Rule: Workmanship Rule § 32-1158.

Complaint Item 3: Attempted to remove old sealer with power washing then put new sealer over old sealer that was still present.

Investigator’s Observation: One piece of stone near the front window does look damaged and different than other flagstone that are part of the patio and walkway.

Governing Rule: Workmanship Rule § 32-1154.A.3.

Complaint Item 11: During initial visit small chips in kool deck in backyard discussed as possible repair. I bought on line product which was unopened and which I clearly stated might not match. He wanted access to the product to test the color match. Repair of kool deck was never authorized and no estimate for cost was given.

Investigator’s Observation: Contracted placed some of the product purchased by complainant and it does not match. It should be removed.

Governing Rule: Workmanship Rule § 32-1154.A.3.

Following his inspection, a Directive was issued on April 21, 2017, directing Respondent to remedy the following violations by the appropriate means:

Repair flagstone with bubbles and flakes of old sealer by front window.

Kool deck repair color does not match existing kool deck color.

Respondent was instructed to provide the Registrar with satisfactory written proof of its compliance no later than May 10, 2017 (5:00 pm).

The ROC Investigator performed a Compliance Inspection on May 18, 2017, and noted:

Compliance Jobsite General Notes: A compliance inspection was requested by Rebecca Dalmeida, the work on the directive was performed but she did not feel it was correct.

Compliance Findings: I found that one piece of flag stone in the front flagstone patio was removed and replaced. There are still approximately 4 pieces of flag stone that have Sealer peeling and cracking under the window, near the front door.

Although the product, (that was provided by the home owner and installed by the contractors was removed from the kool deck around the pool), the kool decking material appears to be removed by a grinder and is all the way down to the concrete. An attempt to repair the kool deck in material should have been made.

A Citation was issued May 22, 2017, citing the following: Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. §32-1154(A)(3); and Charge 2: A violation of A.R.S. 32-1154(A)(22) “Failure 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. The written directive shall set forth the time within the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”

Respondent submitted a letter to the ROC dated May 23, 2017, stating they would be away and not returning until June 14, 2017. It appears the ROC entered a Final Administrative Order and Decision of default on June 12, 2017, but later set that Order aside on June 22, 2017, noticing a Written Answer to the Citation and Complaint was received by Respondent on June 14, 2017.

A Notice of Hearing was sent to the parties on May 23, 2017, that a hearing is scheduled on the charges made in the Citation and Complaint to be held before the Office of Administrative Hearings.

HEARING EVIDENCE

ROC Investigator stated he has been with the ROC for approximately a year and a half and has years’ experience in construction. He stated he was assigned to investigate Complainant’s alleged issues. He provided a narrative report as to his involvement in the case.

ROC Investigator credibly testified he inspected all of the items listed in the Complaint on April 20, 2017, and substantiated three (3) of the 13 items. On or about April 24, 2017, Respondent was sent a warning letter setting forth that any contract for more than $1,000.00 between a contractor and a property owner must contain nine specific elements.

He referenced various photos taken at the time of the compliance inspection on May 18, 2017, and entered into the record. The first photo noted, “Circled stone was replaced due to damage of sealer. 3 more pieces of flag stone have bubbling, peeling on them that were not repaired” (p.1, taken 09:06); “area of kool deck that contractor installed product provided by homeowner. The product was removed as well as a parts of the kool decking” (p. 2, taken 09:09), and “Close up of photo of photo #2” (p.3, taken 09:09).

The ROC Investigator was asked by Respondent whether he noticed any chipping deck coming loose, if color gone, and presented questions surrounding the use of old sealer enhancers and oil based products to which the ROC Investigator replied he did not see the job site prior to the work beginning. ROC Investigator stated flagstone is not easy to work with for various reasons.

Complainant entered Exhibits C-1 and C-2. She stated she provided a copy on an article to Respondent titled, “Sandstone and Flagstone, care, maintenance and sealing.” She believed the article would have been of some assistance. (See Complainant’s Exhibit C-1). She also provided photos to which she noted as, “examples of new joint compound cracking and crumbling.” (See Complainant’s Exhibit C-2).

Complainant testified that Respondent placed new over old sealer which made it worse, and the wrong joint compound was used. Additionally, she argues that responded used a sanding disk to grind down to the concrete on the kool deck when removing the product that was applied to areas on the kool deck.

Respondent testified Complainant never brought to his attention that any of the grout on the existing flagstone was problematic. He also argues that there was existing chipping around the kool deck prior to him performing repairs.

Complainant stated that there are still 4 pieces of flagstone not corrected, and the kool deck is now grinded down. She argues that Respondent was given full access to complete the remedial repairs.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Credible testimony established Respondent performed substandard work, specifically, both the 4 pieces of flagstone that needed remedying and the kool deck that is now grinded down to the concrete on what appears to be surrounding two tiles on the kool deck concrete. Complainant established Respondent’s work on the items specified in the Directive to be in violation of minimum workmanlike manner, specifically A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).

Additionally, an A.R.S. § 32-1154(A)(22) violation is substantiated by photos provided by Investigator Reed during his compliance inspection of May 18, 2017.

The preponderance of the evidence established that Respondent failed to provide adequate remedies to Directive issued by the Registrar. This failure resulted in poor workmanship standards. The Respondent failed to take appropriate means to comply with the Directive, thus the Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and 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 suspend Respondent’s License No: CR21-082640-D for a period of one (1) day.

It is further recommended that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses 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 payment of any outstanding prior civil penalty is tendered.

In the event of certification of this 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 the certification

Done this day, September 14, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors