ALJDEC decisions subject to certification as final

2017A-5798-CHC-ROC · Registrar of Contractors · 2018-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Raymond Jeffrey Maciel,

COMPLAINANT,

v.

Ricketts Landscaping, LLC,

License No: 280521

RESPONDENT.

No. 2017A-5798-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 1, 2018

APPEARANCES: Complainant Raymond Jeffrey Maciel appeared on behalf of himself. Travis Ricketts appeared on behalf of Ricketts Landscaping, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about December 28, 2015, Complainant Jeffrey Maciel entered into a contract with Respondent Ricketts Landscaping, LLC, (hereinafter “Ricketts Landscaping”). Under the contract, Ricketts Landscaping agreed to install a paver driveway at Mr. Maciel’s home.

2. On or about December 28, 2015, Ricketts Landscaping began installing the driveway.

3. On or about January 10, 2016, Ricketts Landscaping completed the installation of the driveway. In the following month, Mr. Maciel informed Ricketts Landscaping that the pavers were separating. Ricketts Landscaping repaired the work shortly after.

4. Approximately six to eight months after Ricketts Landscaping made the first repair, Mr. Maciel contacted Ricketts Landscaping because the pavers began to separate.

5. On or about November 17, 2017, the Registrar received a complaint from Mr. Maciel alleging poor workmanship on the part of Ricketts Landscaping. Mr. Maciel described the deficiency in the complaint. The complaint provides, in relevant part, as follows:

Poor workmanship on paver driveway

All of the pavers are coming loose because edges werent [sic] locked in with concrete

6. On January 5, 2018, Investigator Chris Allison, (hereinafter “Investigator Allison”), conducted a jobsite inspection. Investigator Allison observed that the edges were not locked in in an appropriate manner. Investigator Allison’s notes regarding the jobsite inspection provide, in relevant part, as follows:

Complaint Item 1: Poor workmanship on paver driveway all of the pavers are coming loose because edges weren't locked in with concrete.

Investigator’s Observation: At the time of the inspection the driveway was failing. The pavers were seperating and the edges were sliding. It apprears that the edges were not "locked" in an appropriate manner. Standard industry practice is to embed the edge pavers on concrete or mortar with a haunching. They could also be installed with a retaining edge strip. This is a plastic restraint band that is secured the the earth with 10" spikes.

7. On January 9, 2018, Investigator Allison issued a Directive to Ricketts Landscaping. The January 9, 2018 Directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 1/26/2017.

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

1. The paver driveway in failing. The edge restraints have failed causing the pavers to separate. Correct by appropriate means.

8. Ricketts Landscaping did not comply with the Directive.

9. On February 6, 2018, the Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. section 32-1154(A)(3) and (22).

10. After Ricketts Landscaping’s filed a written answer to the Citation and Complaint, the Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

11. On March 7, 2018, the Registrar issued a Notice of Hearing setting the matter for hearing on May 1, 2018.

12. On May 1, 2018, an evidentiary hearing was held. Travis Ricketts testified on behalf of Ricketts Landscaping. Mr. Maciel testified on his own behalf.

13. At hearing, Mr. Maciel contended that Ricketts Landscaping performed unsatisfactory work when it installed the paver driveway. Mr. Ricketts argued that

Mr. Maciel used the driveway improperly which caused the pavers to separate.

Mr. Ricketts testified that Ricketts Landscaping did not comply with the Directive because Ricketts Landscaping did not believe that it caused the damage to Mr. Maciel’s driveway. Mr. Ricketts testified that he drove past Mr. Maciel’s home 6 to 7 times a day and saw cars parked on the edge of the driveway. Mr. Ricketts argued Mr. Maciel drove on the edge of the driveway instead of the surface.

14. Pursuant to A.A.C. R4-9-117, administrative notice is taken of

Respondent’s prior disciplinary history as shown on the Registrar’s public website on

May 21, 2018. The prior disciplinary history shows that Respondent’s license is currently suspended and that there are three complaints that have resulted in discipline against Respondent’s License No. 280521. One case was closed as resolved, settled or withdrawn by the complainant after issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The suspended status of Respondent’s license does not preclude Complainant from pursuing an administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.

The preponderance of the evidence shows that the issues found by Investigator Allison constituted workmanship issues with the installation of the paver driveway.

The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, Ricketts Landscaping, LLC’s License No: 280521 shall be revoked.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

Done this day, May 1, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors