ALJDEC decisions subject to certification as final
2017A-502-CHC-ROC · Registrar of Contractors · 2017-08-08
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Diana L Thomas,
COMPLAINANT,
v.
Landcare Unlimited LLC,
License No: 235490
RESPONDENT.
No. 2017A-502-CHC-REGISTRAR
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 19, 2017
APPEARANCES: Complainant Diana L. Thomas appeared on behalf of herself. Tim Blake appeared on behalf of Respondent Landcare Unlimited LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
Hearing was convened to determine whether Respondent Landcare Unlimited LLC (“Landcare”) violated state law as alleged by Complainant Diana L. Thomas (“Ms, Thomas”) and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:
FINDINGS OF FACT
In September of 2015, Ms. Thomas entered into a residential remodeling contract with Landcare wherein Landcare agreed to remodel several areas in Ms. Thomas’s backyard.
Landcare’s qualifying party is Timothy Blake.
In September of 2015, Landcare began work on Ms. Thomas’s home.
On or about December 8, 2015, Landcare competed the work.
On or about January 26, 2017, Ms. Thomas filed a complaint with the Registrar alleging that Landcare had performed substandard work in connection with a home remodeling contract.
Landcare holds Arizona Contractor’s License No. 235490.
On February 17, 2017, Registrar Inspector Stephen Lawton conducted an on-site inspection regarding the complaint.
On February 27, 2017, Mr. Lawton issued a written directive. The February 27, 2017 directive provides, in relevant part, as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Travertine improperly installed.
2. Travertine installed around pool poorly cut and installed. Correct by appropriatly licensed contractor.
3. Grout very poorly installed between Travertine around pool area.
4. Travertine very uneven and there is lippage.
5. Drainage gutter in patio area is lifting and comimg a part.
6. Travertine pieces are chipped and cracked in numerous areas.
The work was required to be completed prior to 5:00 p.m. on March 17, 2017.
On April 12, 2017, Mr. Lawton issued an addendum directive because Ms. Thomas added additional items to her complaint. The April 12, 2017 addendum directive provides, in relevant part, as follows:
Cone shaped fireplace redesigned by Land Care Unlimited LLC improperly done. Firestone not used for rebuild. Top of reconstructed fireplace not to code. Chipping of travertine used for rebuild of sitting area as well back of sitting area.
You are hereby directed to remedy the following violations by the appropriate means:
Stone used on the fireplace does not have mortar between stone façade.
Fireplace add on not permitted.
Travertine tile chipped and grout lines uneven at fireplace benches.
Fire pit redesigned. Travertine tile improperly installed/improperly cut/improperly grouted. Travertine improperly cut.
Rebuild of Grill area top of grill/all around grill cracked tile/uneven cutting and grout lines uneven.
The work was required to be completed by to 5:00 p.m. on April 28, 2017.
Landscape did not remedy all of the items listed in the directives by the deadlines.
13. On June 22, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(22) and A.R.S. § 32-1154(2).
14. Landcare filed a timely response to the Citation.
15. A hearing was held on July 19, 2017.
16. At hearing, Ms. Thomas testified that she never told Landcare that it could not perform corrective work on her home during the time period for compliance under the directives. Ms. Thomas testified that she was told by Mr. Lawton that Landcare was not licensed to do work on her property. Ms. Thomas testified that Mr. Lawton told her that she could obtain bids from other contractors.
17. Timothy Blake testified that he did not correct tiles around the pool area because he is not licensed to install tile around pools. Mr. Blake testified that Mr. Lawton informed him that Landcare could not hire another company to correct the work because Landcare would be acting as an unlicensed general contractor. However, Mr. Blake testified that Mr. Lawton informed him that Ms. Thomas could obtain bids from other licensed contractors and Mr. Blake could reimburse Ms. Thomas.
18. Ms. Thomas did not provide Landcare with bids from other contractors by the April 28, 2017 deadline.
19. Mr. Blake testified that he did not correct the items listed in the April 12, 2017 directive by the deadline of April 28, 2017, because Ms. Thomas insisted on hiring another contractor to perform the work. Mr. Blake testified that Ms. Thomas was not pleased with the work that Landcare had performed. Mr. Blake also testified that several times, Ms. Thomas informed him that she did not want Landcare to perform any corrections to her home after the directive was issued. Mr. Blake testified that although Ms. Thomas presented him with bids after the second directive was issued, the amounts far exceeded the amount of his contract with Ms. Thomas.
20. Ms. Thomas presented no evidence in this matter that she provided Landcare with bids to repair items in the February 27, 2017 by the March 17, 2017. Ms. Thomas presented no evidence that she hired a tile contractor to repair the items in the February 27, 2017 directive and requested reimbursement from Landcare. Ms. Thomas testified that she was under the impression that Mr. Blake was not licensed to the job she hired him to complete.
21. Mr. Blake testified that although he did not obtain a permit for the fireplace “add on”, the original fireplace was not permitted. Mr. Blake testified the Public Works Department of the City of Goodyear informed him that a permit was not required for the “add on”.
22. Mr. Lawton testified that Mr. Blake was required to obtain a permit for the “add on.” Mr. Lawton testified that he spoke with an official from the City of Surprise who informed him that a license was required for the “add on” to the fireplace.
23. Mr. Lawton testified that the only item in the directives that Landscape could not have performed himself was item #2 in the February 27, 2017 directive.
24. Ms. Thomas did not understand that Landcare could have corrected all of the items listed in the directive with the exception of item #2 in the February 27, 2017 directive.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-
1154(A).
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 a preponderance of the evidence. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of
fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
4. Landcare did not dispute that its work listed in the February 27, 2017 failed to meet workmanship standards. Therefore, the preponderance of the evidence shows that Landcare violated A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3). However, Landcare contended that Ms. Thomas did not cooperate with Landcare with regard to correcting the items listed in the directive.
The preponderance of the evidence does not show that Landcare violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the February 27, 2017 Directive because Landcare was not licensed to correct the items listed in the February 27, 2017 directive. Furthermore, Landcare would have been acting as a general contractor if he had hired another contractor to perform the work. Although Landcare could have reimbursed Ms. Thomas if she had hired another contractor to correct the work, there was no evidence presented at hearing that Ms. Thomas hired another contractor or provided Landcare with bids before the March 17, 2017 deadline.
The preponderance of the evidence does not show that Landcare violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the April 12, 2017 Directive because Ms. Thomas did not allow Landcare access to correct the work. The weight of the evidence established that Ms. Thomas did not want Landcare to correct the items listed in the April 12, 2017 directive. Ms. Thomas wanted to use her own contractor. When Ms. Thomas presented Landcare with bids from other contractors, the amounts far exceeded the amount of her contract with Landcare.
The preponderance of the evidence established that Landcare was not provided with a reasonable opportunity to correct the items listed in the directive. The preponderance of the evidence also established that Ms. Thomas was not fully informed regarding the items in the directive that Landcare could have repaired itself.
RECOMMENDed order
In view of the foregoing, it is recommended that Landcare Unlimited LLC fully comply with the terms of the written Corrective Orders issued in this matter within 30 days of the effective date of the Registrar’s Order.
If the Registrar of Contractors receives and accepts written proof that Landcare Unlimited LLC has fully complied with the terms of the written Corrective Work Orders issued in this matter within 30 days of the effective date of the Registrar’s Order, then this matter shall be closed.
If the Registrar of Contractors does not receive and accept written proof the Landcare Unlimited LLC has fully complied with the terms of the written Corrective Work Orders issued in this matter within 30 days of the effective date of the Registrar’s Order, then commencing on the 31st day of the effective date of the Registrar’s Order, License No. 235490 of Landcare Unlimited LLC, that License No. 235490 of Landcare Unlimited LLC shall be suspended for a period of five days.
It is further recommended that if Landcare Unlimited LLC provides acceptable written evidence it has been denied reasonable access to Diana L. Thomas’s property after the effective date of this Order, then the above-provided License suspension shall not take place and this matter shall be closed.
It is further recommended, in addition to the above-provided penalties, if any, that Landcare Unlimited LLC pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Landcare Unlimited LLC 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 Landcare Unlimited LLC’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Landcare Unlimited LLC, 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, August 8, 2017
Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors