ALJDEC decisions subject to certification as final

2017A-1856-CHC-ROC · Registrar of Contractors · 2017-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James R. Herr,

COMPLAINANT,

v.

Desert Escapes Landscaping LLC,

License No. CR21.231318-D,

RESPONDENT.

No. 2017A-1856-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 4, 2017, at 8:30 a.m.

APPEARANCES: James R. Herr (“Complainant”) appeared on his own behalf; Desert Escapes Landscaping LLC (“Respondent”) appeared through its qualifying party/ member, Clayton Rivard, and employee, Amanda Rivard.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 5, 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.231318-D for dual landscaping and irrigation systems to Respondent.

On or about April 6, 2017, Complainant filed a complaint with the Registrar against Respondent alleging several specific items of allegedly poor workmanship in Respondent’s performance of its April 18, 2016 contract to install pavers at Complainant’s house at 15606 W. Heritage, Sun City West, Arizona 85375. According to the complaint, Respondent had last performed work on the contract on July 16, 2016, and Complainant had paid Respondent $10,000.00 of the contract price of $16,027.00.

Complainant’s complaint item no. 7 was that Respondent “did not install base correctly and did not compact driveway, causing driveway to settle.”

The Registrar assigned the complaint to its Investigator, Timothy Pennington, for investigation. Investigator Pennington performed a jobsite inspection. On May 1, 2017, Investigator Pennington issued a directive to Respondent to repair five items on Complainant’s complaint on or before 5:00 p.m. on May 19, 2017. The May 1, 2017 directive provided in relevant part as follows:

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

1. Two areas in front yard missing fabric under rock landscaping.

2. Low paver area on driveway next to sidewalk.

3. Missing paver next to garbage can. Excessive sand width.

4. Poor cuts on pavers at garage door entrance.

5. Missing sand on various edges of pavers.

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

On June 1, 2017, Investigator Pennington performed a compliance jobsite inspection and determined that Respondent had not remedied all of the five items on the May 1, 2017 directive. Investigator Pennington referred the complaint to the Registrar’s Legal Department.

On June 1, 2017, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s qualifying party/member Clayton Rivard filed a timely written answer to the Citation, stating that he had contacted Complainant on June 8, 2017, to let him know that Respondent’s crew would be on his property on June 12, 2017, to take care of remaining workmanship issues and that Respondent would have Complainant sign off on repairs before the hearing.

An evidentiary hearing was held on August 4, 2017. Complainant testified and submitted five exhibits, which consisted of numerous photographs. Mr. Rivard and his wife, Respondent’s employee Amanda Rivard, testified on Respondent’s behalf and submitted three exhibits. Investigator Pennington also testified.

Hearing Evidence

In November 2016, Respondent filed a civil action against Complainant in Maricopa County Justice Court, Hassayampa Justice Court, Surprise, Arizona Case No. CC2016210127-RC to recover the unpaid amounts under the April 18, 2016 contract.

On or about December 9, 2017, Complainant filed an answer and counterclaim against Respondent in in Hassayampa Justice Court Case No. CC2016210127-RC in the amount of $6,703.57, alleging as follows:

[Respondent] added charges not agreed to, has not paid for tools purchased for use by his employees, and [Respondent] has not paid for finder’s fee agreed upon.

Paver work is a complete mess and needs to be removed and replaced.

On or about May 10, 2017, shortly before the trial set in Hassayampa Justice Court Case No. CC2016210127-RC, the parties both signed a document to settle their claims against each other in that action, which provided in relevant part as follows:

This document is to show the full and final settlement of all claims between the parties. [Respondent] agrees to dismiss its complaint with prejudice, and [Complainant] agrees to dismiss his counterclaim with prejudice.

The record in this matter does not include the terms of the parties’ settlement of Hassayampa Justice Court Case No. CC2016210127-RC or show whether either party paid anything to resolve the other’s claim.

Complainant testified that he signed the settlement agreement to show his good faith and his belief that Respondent would perform corrections to comply with the May 1, 2017 directive.

Investigator Pennington testified that the May 1, 2017 directive did not require Respondent to remedy the allegedly improper compaction of the driveway because it was not on the parties’ contract.

Investigator Pennington testified that, based on his observations at the May 31, 2017 compliance inspection, Respondent had not fully remedied item nos. 1, 3, and 5 on the May 1, 2017 directive.

Investigator Pennington testified that he performed a prehearing jobsite inspection on August 2, 2017. In his opinion, there was still sand missing in some areas (item no. 5 on the directive) and some of the sand between the pavers was too wide (item no. 3 on the directive).

Investigator Pennington testified that at the prehearing jobsite inspection, he saw that Complainant had removed the decorative rock and installed fabric underneath it (item no. 1 on the directive).

Complainant testified that he installed the fabric well after the deadline on the May 1, 2017 directive. Complainant submitted photographs to show Respondent’s alleged poor installation of fabric.

Mrs. Rivard testified that Respondent did not leave bunched up fabric at Complainant’s jobsite and that if Complainant had allowed, Respondent would have removed all the landscape rock and installed fabric underneath it.

Respondent submitted photographs that showed the remaining workmanship deficiencies in the missing sand and the width of the sand to be minor.

Mrs. Rivard testified that Respondent would have completed repairs if Complainant had allowed access. Mr. Rivard testified that Complainant did not allow access to Respondent to complete repairs.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Complainant established that Respondent’s workmanship did not comply with the Registrar’s standards in the five specific deficiencies noted in the May 1, 2017 directive, thereby potentially providing cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked. It appears that Complainant allowed some access to Respondent to perform repairs after the May 1, 2017 directive was issued.

Respondent had a right to contest at the hearing the May 1, 2017 directive’s requirement that it re-install fabric underneath the landscape rock and, if the item were found to have not complied with the Registrar’s workmanship standards and not to have been corrected, to contest the cost to repair the item in any claim that Complainant later may have filed with the Residential Contractors’ Recovery Fund under A.R.S. § 32-1132(A). Complainant did not need to install fabric under the landscape rock to address a health or safety issue that required immediate correction or to prevent further damage. Therefore, Complainant’s installation of the fabric underneath the landscape rock prevents him from obtaining any further relief in this forum on this issue.

It also appears that Complainant filed the complaint with the Registrar to retaliate against or to gain some advantage in the lawsuit that Respondent filed against him for nonpayment in Hassayampa Justice Court Case No. CC2016210127-RC. On May 10, 2017, Complainant released all claims against Respondent, including the workmanship complaints at issue in this administrative proceeding, which as a matter of contract law should preclude Complainant from continuing to prosecute the complaint he filed against Respondent with the Registrar. The remaining workmanship issues are minor and Complainant may have been financially compensated for these remaining deficiencies. Under the circumstances, Complainant did not establish cause to discipline Respondent’s contractor’s license under 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 final order in this matter, Complainant James R. Herr’s complaint in Case No. 2017-1856 against Respondent Desert Escapes Landscaping LLC’s License No. CR21.231318-D shall be dismissed.

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 five days from the date of that certification.

Done this day, August 11, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors