ALJDEC decisions subject to certification as final
2017A-5580-CHC-ROC · Registrar of Contractors · 2018-04-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Platinum Construction LLC,
COMPLAINANT,
v.
Blue Agave Landscape Design and Install LLC,
License No: 238654
RESPONDENT.
No. 2017A-5580-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 13, 2018, at 8:30 a.m.
APPEARANCES: Larry Simmons (“Mr. Simmons,” representative for Platinum Construction LLC, “Complainant”); Denny Barnett (“Mr. Barnett,” representative for Blue Agave Landscape Design and Install LLC, “Respondent”); James A. Rost (“Mr. Rost,” witness for Respondent); and Steve Nelsen (“Investigator Nelsen,” investigator for the Registrar of Contractors, “ROC” or “Registrar”).
ADMINISTRATIVE LAW JUDGE: Linda Marie Brown
_____________________________________________________________________
A Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Based on the testimony and evidence at hearing, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.
FINDINGS OF FACT
Larry Arthur Simmons (“Mr. Simmons”) as of May 12, 2016, is the qualifying party/member for Platinum Construction LLC (“Complainant”) a B-5 General Swimming Pool Contractor located at 260 North Gilbert Road, Mesa, Arizona 85203-8299. James Allen Rost (“Mr. Rost”) is listed was deactivated as the Qualifying Party for Complainant on April 1, 2016.
Blue Agave Landscape Design and Install LLC (“Respondent”) was issued its Arizona Contractor’s License No. CR21.238654-D Hardscaping and Irrigation Systems on October 30, 2007. In review of the Registrar’s public website, administrative notice is taken that Respondent’s license is current and this is the first complaint filed against Respondent.
On or about December 30, 2016, Complainant contracted with Respondent to install decking, tile leveling and pavers a new pool installation located at 2916 East Boot Track Trail, Gilbert, Arizona 85296 (“Gilbert Property”).
On or about November 6, 2017, a complaint was filed with the Registrar by the Complainant alleging Respondent had performed poor work. Complainant listed three (3) alleged issues as: (1) decking was improperly installed; (2) deck is moving and separating; and (3) improper compaction as time of decking installation. Complainant attached to its complaint Warranty Work Order 6910 received on July 13, 2017, as assigned to Respondent, noting, “Is this completed? Need to repair area of deck in back right by planter,” and Warranty Work Order 7098 received August 17, 2017, describing the problem as, “Bob, please go out tomorrow if you can and check out the deck damages on this job. Customers are a bit irritated that we did such a crappy job installing the raised area in the back. Please let me know when you are going out. Thanks 8/22-denny from blue agave was out yesterday to look at everything and will get back to us with a plan. Bob also went out and is waiting to hear from denny. 8/28-WHAT IS THE UPDATE ON THIS SITUATION? 9/27-raised deck needs to be fully replaced. gl”
Complainant included a copy of its construction plans for the Gilbert Property. Respondent was paid a total of $6,785.00 for the installation of the decking and pavers it performed at the Gilbert Property.
Investigator Steve Nelsen was assigned to investigate the complaint. Investigator Nelsen notes indicate he met Complainant and homeowner at the jobsite to conduct the inspection on December 6, 2017. Respondent was not present.
During this jobsite inspection, Investigator Nelson obtained twelve (12) photographs with a state issued camera and made several observations.
Based upon Investigator Nelsen’s Jobsite Inspection Notes, he substantiated the following items:
Complaint Item 1: Decking was improperly installed.
Inspector’s Observation: This is a statement by the Complainant, not a verifiable workmanship issue.
Governing Rule: N/A.
Complaint Item 2: Deck is moving and separating (correct substantial cracking and upheaving in pool deck area.)
Inspector’s Observation: The decks is upheaving and separating significantly in all four corners of the pool deck, most notably around the north side of the pool. The cracks in the deck travertine range from 1/8” to larger than 3⁄4” and should be corrected by appropriate means. The upheaving is as much as 1⁄2” in 4’, this should also be corrected. See pics 1-6 and 8-11.
Governing Rule: A.R.S. § 32-1154(A)(3).
Complaint Item 3: Improper compaction at time of decking installation
Inspector’s Observation: This is a statement by the Complainant, not a verifiable workmanship issue without compaction testing. This is an expansive soil area, but the Respondent does accept the substrate when they do the job.
Governing Rule: N/A
On December 7, 2017, a Directive was issued from the Registrar. The Directive stated in pertinent part, that Respondent is hereby directed to remedy the following violations by the appropriate means: “Deck is moving and separating (correct substantial cracking and upheaving in pool deck area).” The Directive provided that the above work had to be remedied by 5:00 p.m. on December 30, 2017.
On January 3, 2018, the Registrar issued a Citation to Respondent. The Citation contained the following charges: 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); Charge 2: a violation of A.R.S. § 32-1154(A)(12) failure in any material respect to comply with this chapter 1158(B), No. 9, that property owner has the right to file written complaint with the register for an alleged violation of section 32-1154(A); Charge 3: a violation of A.R.S. § 32-1154(A)(16) knowingly contracting beyond the scope of the license or license of licensee; and Charge 4: a violation of A.R.S. § 32-1154(A)(22) failure to take appropriate corrective action . . . without valid justification.
Respondent filed its Written Answer to Citation and Complaint on or about January 17, 2017. Respondent argues in its Response that the work did not fail, and that charges should be filed against other parties. Respondent further asserts that it should not be subject to discipline because the findings are inaccurate and should be the liability of other parties.
a Notice of Hearing was issued that a hearing upon the charges made in the Citation and Complaint will be held by the Office of Administrative Hearings. A copy was mailed to the Respondent’s address of record.
At hearing, Complainant argued that Respondent deviated from drawings without obtaining the required signature, and that the poor workmanship issue was presented to Respondent as a warranty work order prior to filing its complaint. Complainant argued that the area is known to contain expansive soil. When questioned whether additional efforts were taken when installing the pool to include steel reinforcements, Complainant respondent it was not sure and would send the documents that address the method used when installing the pool since additional measures would require the homeowner to pay more for the pool installation. The Engineer Plans were later received to include a note from Complainant that the pool engineering has nothing to do with the deck as the deck is floating and the engineer plans are the pool only which is not in question.
Respondent takes the position that the complained of moving and separation of the deck is outside its control and caused by the perimeter wall on the property and the pool settling.
Investigator Nelsen credibly testified that it did not issue a warning letter to Respondent for the Knowingly contracting beyond the scope of your license would be a violation of A.R.S. § 32-1154(A)(16), or missing elements to a contract in violation of A.R.S. § 32-1154(A)(12).
Investigator Nelsen also stated that in his observations, the deck is one of the worst failures he has seen. He further asserted that the area is subject to expansive soil, and that Respondent failed to mitigate. He also testified that Respondent accepts the substrate when taking the job and is responsible to warrant its work product.
During his testimony, there appeared to be cross-reference that both Complainant and Respondent were performing outside the scope of their license.
Investigator Nelsen was questioned by Respondent regarding Charge 3 and later testified that Respondent does have the proper license.
Respondent also questioned Investigator Nelsen regarding Charge 2 and asked whether No. 9 of the required elements to a contract is specific to the homeowner and whether Complainant is the homeowner.
Respondent referenced various photographs that were obtained by Investigator Nelsen at the time of his jobsite inspection. He referenced photographs for verification that there is “significant cracking on wall and stucco and wall by others.”
Complainant questioned Investigator Nelsen regarding photographs 9 and 10, and asked if he is aware of any preventive measures Respondent should have taken to which he replied he could have gotten the engineer involved to perform soil testing, used select fill, and possibly added steel.
Respondent further asked if Investigator Nelsen was aware of industry standards. Whether he is aware if any measures were taken to identify if the pool was properly engineered during installation for possibly expansive soil?
Complainant redirected whether Respondent took appropriate means to remedy the Directive?
Respondent called Mr. Rost as a witness. Complainant recognized Mr. Rost as an expert in the field of swimming pool installation. Mr. Rost was the qualifying party of Complainant’s entity at the time the work was performed.
Mr. Rost stated that the pool is not at issue, and the moving and separating of the deck is likely due to external forces. He also stated that the coping is not attached to the deck.
Complainant in its closing stated that homeowner has been extremely patient and that Respondent has not fixed the complained of issue.
Respondent stated that the issue stems from others and he is not responsible. He also testified that there is a two (2) year warranty for defective product.
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).
Charge 1: Undisputed credible testimony established Respondent performed substandard work on the deck installation. Thus, Complainant established Respondent’s work on the item specified in the Directive was not performed in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
Respondent’s argument that the issue is the result of external forces beyond its control is least persuasive given the testimony and photographs provided by Investigator Nelsen.
“As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.”
Therefore, a violation of A.R.S. § 32-1154(A)(3) for deficient workmanship issues is warranted based on the testimony and evidence presented at hearing.
Charge 2: Under A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158(B), a contractor is required to include the minimum elements of a contract in writing when contracting. Those elements include the name, license number, and business address of the contractor, as well as the fact that the property owner has the right to file a written complaint with the ROC. Neither Complainant nor Investigator Nelson addressed this alleged violation. In view of the foregoing, the Administrative Law Judge concludes that no evidence was presented at hearing to demonstrate or as representative that Respondent is in violation of A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158.
Complainant failed to establish cause to discipline Respondent’s license under A.R.S. § 32-1158. Additionally, the Registrar did not issue a warning letter to allow Respondent notice and opportunity to remedy any concerns or alleged noncompliance issues with said statutory provisions.
Charge 3: This Tribunal does not recommend discipline under A.R.S. § 32-1154(A)(16), based on testimony received by Investigator Nelsen at the time of hearing that Respondent was not operating beyond the scope of its license.
Charge 4: A violation of A.R.S. § 32-1154(A)(22) is warranted given that Respondent failed to timely take corrective action to remedy the item specified in the Directive. Respondent provided no valid justification at hearing to mitigate this charge. Therefore, the record established that Complainant afforded Respondent access to remedy and initially reported the issue to Respondent on or about July 13, 2017, prior to filing its compliant with the Registrar and following the issuance of a Directive by the Registrar, Respondent failed to timely remedy by appropriate means the corrective action as set forth in the Directive.
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. CR21.238654-D for a period of two (2) days.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty.
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, April 5, 2018.
/s/ Linda Marie Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors