ALJDEC decisions subject to certification as final

2017A-4793-CHC-ROC · Registrar of Contractors · 2018-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roadrunner Condo Association,

COMPLAINANT,

v.

PVTS LLC dba,

Phoenix Valley Tree Service ,

License No: 308987

RESPONDENT.

No. 2017A-4793-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2018

APPEARANCES: Pamela Crossman, Complainant, Danial Murray, witness for Complainant, Joyce Kayl, witness for Complainant, Timothy. Pennington, ROC Investigator. Respondent does not appear.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

FINDINGS OF FACT

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a complaint against the Respondent for poor and below standard workmanship, failure to follow plans and specifications and abandonment of a contracted landscaping project.

On December 8, 2017, the Registrar issued a Notice of hearing setting a hearing at 8:30 am on February 1, 2018. The Registrar mailed copies of the Notice of hearing to the respondent at tis address of record.

The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.”

Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, respondent did not appear through and authorized member, employee or attorney. Consequently, Respondent did not present any evidence to defend its license.

A hearing was conducted on February 1, 2018.

Pamela Crossman, Complainant, introduced Exhibit C-1 which was admitted into evidence. Ms. Crossman testified that the Complainant Roadrunner Condominium Association incurred related repair expenses directly resulting from Respondent conduct alleged in its Complaint in the total amount of $1,575.00 reflected by the invoices contained in Exhibit C-1.

ROC Investigator Timothy Pennington testified that at his site inspection conducted October 19, 2017 in follow-up to the Complaint, the Respondent did not appear. Notice of the inspection was provided to the Respondent at its address of record.

The Registrar of Contractors issued a corrective work order [CWO] to the Respondent on October 20, 2017 as follows:

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

Address(sic) are all on W Clair Drive, Sun City AZ 85351

No dividers to hold the rock from spreading to the back yard installed per contract.

Sprinkler system is not working or completed at units 10534, 10536, 10602, 10606, 10610, 10614, 10620, 10624.

Granite rock is not spread 2” thickness evenly throughout units 10534, 10536, 10602, 10606, 10610, 10614, 10620, 10624, 10628, 10632, 10638, 10642, 10646, 10650.

In the CWO, the Respondent was given until October 11, 2017 to notify the ROC of its compliance with the CWO. The ROC having not received a notice of compliance from the Respondent, on October 17, 2017 a compliance inspection was conducted by Investigator Pennington who issued notes of his findings as follows:

Complaint Item 1: 10534

(a) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2)Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 2, 3 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship; 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications.

Complaint Item 2: 10536

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2)Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3)Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 2, 3 of the complaint

on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications.

Complaint Item 3: 10602

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

Investigator’s Observation: Substantiated. Items 1, 2 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

Complaint Item 4: 10606

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2)Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

Investigator’s Observation: Substantiated. Items 1, 2 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

Complaint Item 5: 10610

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

Investigator’s Observation: Substantiated. Items 1, 2 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

Complaint Item 6: 10614

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 2, 3 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications.

Complaint Item 7: 10620

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 2, 3 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship. 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications.

Complaint Item 8: 10624

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

Investigator’s Observation: Substantiated. Items 1, 2 of the complaint on this unit are not completed.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

Complaint Item 9: 10628

1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

Investigator’s Observation: Substantiated. Items 1, 2 of the complaint on this unit are not completed. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 10: 10632

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 3 of the complaint on this unit are not completed. Item 2 corrected by another contractor. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship 32-1154 (A) (2). Departure from or disregard of plans or specifications.

Complaint Item 11: 10638

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 3 of the complaint on this unit are not completed. Item 2 corrected by another contractor.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications.

Complaint Item 12: 10642

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1 of the complaint on this unit are not completed. Item 2 corrected by another contractor. Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

Complaint Item 13: 10646

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, of the complaint on this unit are not completed. Item 2 corrected by another contractor.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 14: 10650

(1) Granit (sic) is not 2” thick in various spots throughout the front and side area.

(2) Sprinkler system is not working properly or at all. Not completed. Plants are dyeing (sic) due to failed sprinkler system.

(3) Did not install edging or curbing to delineate front/backyards per contract.

Investigator’s Observation: Substantiated. Items 1, 3 of the complaint on this unit are not completed. Item 2 corrected by another contractor.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship 32-1154 (A) (2) 2. Departure from or disregard of plans or specifications

On November 14, 2017, the ROC issued its citation against the Respondent charging three alleged violations:

A violation of A.R.S. § 32-1154(A)(2)

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).

A violation of A.R.S. § 32-1154(A)(22)

The Respondent timely filed an answer to the complaint on November 26, 2017. The answer asserts that the CWO was never received by the Respondent. The answer admits the citation was received by the Respondent at its address of record.

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CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793-CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). PVTS LLC dba Phoenix Valley Tree Service is a licensee.

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).

The Respondent presented no evidence.

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).

The preponderance of the evidence does not show that Respondent is unscrupulous, unqualified, or financially irresponsible.

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:

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3. Violation of any rule adopted by the registrar.

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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.

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

The copies of corrective work order and the Notice of Hearing that the registrar mailed to the Respondent at its address of record and at the address on its written answer were reasonable. Respondent is deemed to have received notice of the hearing. A.R.S. §41-1092.04 and §41-1092.05(D).

By its failure to appear, Respondent has defaulted. Inasmuch as by its default Respondent has presented virtually no evidence to defend its license, then Respondent has failed to meet its burden of proof.

Respondent did abandon this project in violation of A.R.S. 32-1154.A.1.

Respondent did violate A.R.S 32-1154.A.23 by failing to comply with the written directives of the Registrar of Contractors, i.e. the CWOs, within a reasonable amount of time without valid justification.

Respondent did repeatedly violate A.R.S. 32-1154.A.3 on this job by violating the workmanship standards as specified in A.A.C. R4-9-108. These workmanship deficiencies were multiple and extensive.

Respondent did violate A.R.S. §32-1154.A.2, departure from plans.

That the Respondent did ignore each effort of the ROC to address the concerns of the Complainant - in that the Respondent did not appear for any of the ROC Inspector’s inspections and that the Respondent failed to appear at the hearing in this case - is an aggravating circumstance.

The Complainant suffered an economic loss to repair Respondent’s poor workmanship and departure from or disregard of plans or specifications in the amount of $1,575.00 as is reflected by the invoices contained in Exhibit C-1. Such incurred expenses are both reasonable and credible. The Complainant should be paid $1,575.00 by the Respondent in restitution.

The Respondent’s license should, under the facts presented in this case, be suspended for not less than five days unless the Respondent complies with the previously issued CWO.

The Respondent should be required to comply with the October 20, 2017 ROC Directive as a condition of its continued licensure.

Pursuant to A.R.S. §32-1154(D), the Registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A.R.S. §32-1154(A)(23). By its failure to comply with the ROC’s October 20, 2017 CWO, the ROC should impose a civil penalty of $250.00.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that thirty days after the effective date of the final Order in this matter PVTS LLC dba, Phoenix Valley Tree Service, License No: 308987 is suspended for five days unless the Registrar of Contractors receives proof that PVTS LLC dba, Phoenix Valley Tree Service, by appropriate means, remedied the items listed in the ROC corrective work order.

FURTHER IT IS RECOMMENDED it be Ordered that the Respondent’s license shall be suspended until sufficient proof has been provided to the Registrar that Respondent has paid the Complainant, in certified funds, the sum of $1,575.00 in restitution.

FURTHER IT IS RECOMMENDED it be Ordered that in accordance with A.R.S. §32-1154(D), a civil penalty in the amount of $250.00 is imposed against PVTS LLC dba, Phoenix Valley Tree Service, License Number 308987.

FURTHER IT IS RECOMMENDED it be ordered that License No: 308987 of PVTS LLC dba, Phoenix Valley Tree Service, shall be suspended until payment of the $250.00 civil penalty hereby imposed is paid, in-full, to the Registrar. Provided that, if the Respondent fails to pay the $250.00 penalty imposed within thirty days after the effective date of this order, then in accordance with A.R.S. §32-1154(D), the License number 308987 of PVTS LLC dba, Phoenix Valley Tree Service shall be revoked.

Done this day, February 1, 2018.

Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors