ALJDEC decisions subject to certification as final

2017A-5894-CHC-ROC · Registrar of Contractors · 2018-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bruce Bruhn,

COMPLAINANT,

v.

Riverview Property Services LLC,

License No. 306849,

RESPONDENT.

No. 2017A-5894-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2018

APPEARANCES: Kim Eckert, Esq. for Complainant; Jeffrie Whipple for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

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FINDINGS OF FACT

On February 14, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 27, 2018 at the Office of Administrative Hearing.

Respondent Riverview Property Services, LLC, holds license No. 306849 issued by ROC.

Jeffrie Carter Whipple Riverview’s qualifying party.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

Through the Citation, ROC alleges that Riverview may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Riverview’s license.

In September 2017, Complainant Bruce Bruhn and his wife Jessica Bruhn, contracted to have Riverview install artificial turf in their yard, with pavers along borders. There was no written contract.

Although the project was not 100% complete, on September 29, 2017, Mr. Bruhn paid Riverview by a check in the amount of $9875.75. Ms. Bruhn testified that Mr. Bruhn paid an additional $80 in cash. The project was completed later in the day on September 29, 2017.

Soon after the project was completed, the Bruhns expressed dissatisfaction on several points. Of particular note was their opinion that the turf had been installed “backwards,” meaning that the shiny side was toward the house, that the seams were visible, and that there were “divots” in the yard.

Riverview sent a crew to fix the divots, but the Bruhns were not satisfied that all their concerns were addressed. A meeting was scheduled to discuss the issues, but Mr. Bruhn had to cancel.

According to the Bruhns, Mr. Whipple informed them that the work was as good as it gets and they should contact ROC. Mr. Whipple acknowledges that he told the Bruhns that they should contact ROC, but he explained that this was in regard to their assertion that the turf was backwards. Mr. Whipple was of the opinion that there was no such thing as long as the direction was uniform, and he testified to the effect that he did not believe that the Bruhns would ever be satisfied on this point, so he thought it best to get guidance from ROC.

On November 24, 2017, Mr. Bruhn filed with ROC his complaint against Riverview.

In response to Mr. Bruhn’s complaint, ROC Investigator Jack Grimm conducted a jobsite inspection on December 21, 2017.

Mr. Grimm testified that ROC has no written workmanship standards for artificial turf installation, and no written workmanship standards for pavers used as edging. As such, he applied his own judgment in determining whether Riverview’s work was in violation of Ariz. Admin. Code section R4-9-108(A).

Mr. Grimm made the following findings regarding the Items in Mr. Bruhn’s complaint:

Item 1 – the paver installation was acceptable, but the level of the turf at the edges of the pavers was not consistent, ranging from 1 to 3 inches. There is a need to correct a low spot to prevent ponding.

Item 2 – there was an area where the blades did not stand properly, but this appears to be due to roll crush and may need to be addressed by the manufacturer.

Item 3 – the seams have gaps that are too wide and need to be corrected.

Item 4 – the turf was well secured and missing only one nail; the installed nails were not visible.

Item 5 – there was one area with a gap of about one inch between the turf and pavers.

Item 6 – the pavers around the tree were level, but the grouting was poor and inconsistent.

Item 7 – the direction of the turf is not an issue because all pieces appear to be laid in the same direction.

On December 22, 2017, ROC issued to Riverview a Directive that required Riverview to correct by appropriate means:

1. Correct grade in yard for low spots. Correct height of turf against the pavers for consistency.

2. Correct location of turf one (1) to two (2) feet away from the patio where turf will not stand up. (Possible roll crush)

3. Correct seams between turf that have gaps.

4. Secure turf in southwest corner that is loose.

5. Correct gap of turf to border at west side of tree ring.

6. Correct grout between tree ring pavers for consistency.

Rcc014 Corrective Work Order1.rtf (in administrative record)

The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Bruhn’s complaint were unsubstantiated.

The Directive required Riverview to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. January 11, 2018.

Riverview made certain repairs, but Mr. Bruhn was not satisfied that these were completed properly.

Mr. Grimm conducted a Compliance Jobsite Inspection on January 22, 2018. At that time, Mr. Grimm made the following conclusions:

1. Correct grade in yard for low spots. Correct height of turf against the pavers for consistency.

COMPLETE

2. Correct location of turf one (1) to two (2) feet away from the patio where turf will not stand up. (Possible roll crush)

Possible manufacturer issue and is not the [responsibility] of the contractor.

3. Correct seams between turf that have gaps.

INCOMPLETE - Second seem from the west is mohawking and is poor. New turf at west end of the yard does not appear to match existing.

4. Secure turf in southwest corner that is loose.

COMPLETE

5. Correct gap of turf to border at west side of tree ring.

COMPLETE

6. Correct grout between tree ring pavers for consistency.

INCOMPLETE - Still looks [poorly] done.

Rcc104 Compliance Jobsite Inspection Notes1.rtf (in administrative record)

On January 23, 2018, ROC issued to Riverview a Citation.

In Riverview’s Answer, Mr. Whipple indicated a willingness to correct the Items that Mr. Grimm found were not properly corrected, explaining that more time was required.

Mr. Bruhn did not agree with Mr. Grimm’s findings that some of the Items had been repaired. Ms. Bruhn testified that this was based on bids and information from other companies that install artificial turf, and the Bruhns’ own observations.

At the hearing, Mr. Whipple testified as to Riverview’s willingness to make any additional corrections that Mr. Grimm had identified during his compliance jobsite inspection.

Before Riverview conducted its corrective work, AZ Turf Masters had provided Mr. Bruhn with a bid to tighten the turf’s seams. At the hearing, Mr. Whipple stated that he would be willing to pay AZ Turf Masters to repair the one seam that Mr. Grimm did not believe had been appropriately repaired.

Mr. Bruhn was of the opinion that allowing AZ Turf to make this repair would void his warranty, but this does not appear to be correct because the warranty requires only that a “qualified installer” make any repairs.

Mr. Bruhn also had entered into evidence an email from AZ Turf Masters dated March 5, 2018, showing that it was no longer willing to make any required repairs. That email can be read to show that this was because there would not be sufficient material to do the job properly. Mr. Whipple testified that he has extra material from the roll of turf Riverview used.

As noted in Mr. Grimm’s compliance jobsite inspection notes, after Riverview’s corrective work, the turf was of two different colors or shades. In Riverview’s Answer and at the hearing, Mr. Whipple explained that this was a new piece of turf taken from the same roll that was used in the initial project. His opinion was that the color variation was due to the fact that at the time of the compliance jobsite inspection, the original turf had been exposed to the elements for several months, whereas the replacement piece had not been. Mr. Whipple’s opinion was that this color variation would abate over time.

At the hearing, Mr. Bruhn questioned Mr. Grimm about whether he had evaluated the entire yard to determine if it was level. Mr. Grimm acknowledged that his focus had been on the edges near the pavers, which he believed was consistent with the allegation in Mr. Bruhn’s complaint.

Mr. Bruhn did not provide substantial evidence to show that the grade of the yard does not meet any applicable workmanship standard because he did not identify any applicable standard and did not provide any measurements or other criteria by which compliance could be judged.

In support of the allegation that the turf was installed backwards, Mr. Bruhn referred to an email from AZ Turf Masters showing that the turf was installed with the blades facing away from the house, which is “not ideal.” This is not sufficient to show that Mr. Grimm erred in his determination that the orientation of the turf was not a workmanship violation.

At the hearing, Mr. Bruhn alleged that there is now grass growing between the seams of his turf. Because this allegation is not in his complaint it is beyond the scope of this hearing.

Mr. Bruhn testified that he was unwilling to allow Riverview back on his property.

CONCLUSIONS OF LAW

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).

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 Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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. 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.

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

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Although ROC has no workmanship standards for artificial turf or for pavers used as edging, considering the facts in this matter, the preponderance of the evidence shows that Riverview violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner. In particular, the evidence shows that the gaps at the seams, the unevenness of the turf at the edges, and the mortar around the tree ring are indicative of a failure to complete the project in a workmanlike manner.

Although Mr. Bruhn’s opinion is that Mr. Grimm failed to identify all the poor workmanship and that he improperly concluded that some corrections had been made, Mr. Bruhn has not proven this by a preponderance of the evidence.

The preponderance of the evidence shows that Riverview violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Riverview did not complete the required work within the time set out in the Directive.

Because Riverview has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter Riverview Property Services LLC’s license number 306849 is suspended for three days;

IT IS FURTHER RECOMMENDED that if before the effective date of the Final Order, the Registrar of Contractors receives proof that Riverview Property Services LLC has completed the corrections required by the Directive, then no suspension will take place;

IT IS FURTHER RECOMMENDED that if Mr. Bruhn is unwilling to provide Riverview Property Services LLC with access to make the required corrections, then no suspension will take place;

IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Riverview Property Services LLC must pay to the Registrar of Contractors in certified funds a civil penalty of $200.00.

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 is forty days after the date of that certification.

Done this day, March 28, 2018

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors