ALJDEC decisions subject to certification as final
2017A-4713-CHC-ROC · Registrar of Contractors · 2018-03-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Barbara Louise Dodds,
COMPLAINANT,
v.
Desert Soul Landesign LLC,
License No. 300590,
RESPONDENT
No. 2017A-4713-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 12, 2018, 1:00 P.M.
APPEARANCES: Emilie Bell, Esq., appeared on behalf of Complainant; Gary and Michelle Hawley appeared on behalf of Respondent; Steve Nelsen appeared on behalf of Registrar of Contractors
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Desert Soul Landesign, LLC (Respondent), is the holder of License Number 300590 issued by the Registrar of Contractors (Registrar).
2. On or about September 13, 2017, Barbara Dodds (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work on the part of Respondent in connection with the installation of a swimming pool and landscaping by Respondent at Complainant’s residence in Chandler, Arizona.
3. After the Registrar’s inspection of the job site on October 10, 2017, the Registrar issued a Directive, dated October 10, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 27, 2017, as follows:
Excessive gaps between pavers (pavers with gaps greater that 3/16" in the field or 3/8" along the edge should be corrected).
Excessive deviations, dips and sags in pavers (areas greater than 1⁄4” should be corrected).
Paver slope & drainage problems- high low areas (decks should drain to exterior edge of pool or (deco) drain. An area was noted along the back side of the pool that did not have positive drainage away from the pool.
Irregular appearance on pool decking and patio area. (Efflorescence is common in this application, excess sand and construction debris should be cleaned from pavers).
Excessive shading and molting of plaster finish bottom pool.
Cracks and large gaps in stucco outdoor grill. (correct cracks in stucco bbq).
Deck drain gaps/gaps to ground where water leaks into (deco drain). (Ensure deco drain cover is installed correctly).
4. The Registrar performed another inspection on November 3, 2017, and determined that Directive item numbers 1, 5, 6, and 7 had been corrected. In that in the Registrar’s view the remaining Directive items had not been corrected, the Registrar then issued a Citation to Respondent on November 17, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 12, 2018, at 1:00 P.M. At the hearing, Complainant appeared and testified on her own behalf; Jason Monty and William Drewak appeared and testified on behalf of Complainant; Gary Harley and Michelle Harley, owners of Respondent, appeared and testified on behalf of Respondent. Steve Nelsen, the Registrar Investigator (Investigator), testified on behalf of the Registrar.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that Directive item numbers 1, 5, 6, and 7 had been corrected by Respondent but that item numbers 2 (paver deviations in 15-20 areas), 3 (paver sloping), and 4 (excessive sand) had not been corrected. He testified that he did not see more than a day’s worth of corrective work and believed that Complainant’s expectations were to some extent unrealistic.
7. Complainant testified as to the numerous issues she had with the project and the deficiencies leading up to the time of the Directive and those that still remain in her view.
8. Complainant also testified that she did not believe that Directive item numbers 1 (excessive gaps between pavers), 5 (shading of pool plaster), and 6 (cracks in grill stucco) had been corrected and presented photographs of their current condition. (Complainant’s Exhibits 19-24).
9. As it relates to the Directive, Jason Monty, who identified himself as Complainant’s son-in-law, testified on behalf of Complainant that he observed that a vast majority of the pavers were sinking. He further testified that he observed uneven coloring on the bottom surface of the pool.
10. William Drenek, who identified himself as a friend of Complainant’s daughter, testified that he is a part owner of Copper Canyon Landscaping which has been in business for 17 years. As it relates to the Directive, he testified that the pavers were sinking in his opinion due to the base not being properly prepared by Respondent. He also testified that the hazing condition of the pavers in his opinion is the result of improper installation and cannot be eliminated.
11. Gary Harley and Michelle Harley on behalf of Respondent testified they have made effort to correct the items listed in the Directive, have attempted to accommodate Complainant with respect to all of her requests, and continue to be ready, willing, and able to correct those specific pavers that are still considered to be deficient. Mr. Harley further testified that to correct the Directive items, a company named Sculptured Grounds was hired to address Directive item numbers 1, 2, 3, and 7. (Complainant’s Exhibit 27). He further stated that Superior Pool Plastering was engaged to acid wash the pool surface to improve or eliminate the uneven color. (Complainant’s Exhibit 11). He also stated that the pavers were power washed in an effort to eliminate the hazing.
CONCLUSIONS OF LAW
1. 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.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. A.R.S. § 32-1154(A) in pertinent part includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,
3. Violation of any rule adopted by the registrar.
...
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 which 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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
5. Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. The evidence presented is sufficient to support a finding that Directive item numbers 2 (paver deviations in 15-20 areas), 3 (paver sloping), and 4 (excessive sand) have not been corrected or otherwise now exist. The Investigator testified that he observed these deficiencies at his last inspection. Although Respondent presented evidence as to the corrective action it took, it did not present evidence to establish that these items had been completely corrected. Therefore, Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for failing perform all work in a professional and workmanlike manner.
7. The evidence presented is sufficient to support a finding that Directive item numbers 1 (excessive gaps between pavers), 5 (shading of pool plaster), and 6 (cracks in grill stucco) have been corrected. Complainant disputes that these items have been corrected and presented photographs of their current condition. (Complainant’s Exhibits 19-24). However, the Investigator testified that these items were “completed satisfactorily” and that Complainant’s expectations may have been unrealistic. The Tribunal finds that these items were corrected at least to a level that meets minimum workmanship standards and are therefore not the basis of any disciplinary action. To the extent there is a failure to correct these items to the level of Complainant’s expectations or satisfaction, such a failure may or may not be actionable in another forum.
8. The Tribunal makes no findings as to matters raised at the hearing that are not contained in the Directive. Complainant testified as to alleged newly-discovered deficiencies in Respondent’s work. As these matters are not specifically addressed in the Directive, they are not properly before this Tribunal.
9. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3). However, based on Respondent’s efforts to correct the deficiencies, the Tribunal finds that Respondent should be afforded another opportunity to correct the deficiencies before any disciplinary action is imposed.
10. Complainant has failed to present sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented showed Respondent made a diligent and good faith effort to correct the remaining items of the Directive in a timely manner.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that 14 days from the effective date of this Order, Desert Soul Landesign, LLC’s, License Number 300590 shall be suspended for two days unless the Registrar receives and accepts written verification that Desert Soul Landesign, LLC, has corrected or caused to correct the remaining items listed in the Registrar’s Directive, dated October 10, 2017.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected the remaining items, the Registrar may close the Complaint in Case No. 2017A-4713-CHC-ROC.
. 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 five days from the date of the certification.
Done this day, March 5, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors