ALJDEC decisions subject to certification as final

2018A-04343-ROC · Registrar of Contractors · 2019-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 22 and July 26, 2019 APPEARANCES: John G. Ryan, Esq. for Complainant; Brown Hiamoehakau Taueli for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On January 18, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 22, 2019 at the Office of Administrative Hearing. 2. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint. 3. Respondent A to Z Tauveli Landscape & Design LLC holds license No. 276019 issued by ROC. Brown Hiamoehakau Taueli is Respondent’s qualifying party and a member of the LLC. 4. Respondent conducted landscaping and related construction work at the home Complainant Ryan W. Lowing and his wife Erin Reister. The parties did not have a written contract. Respondent paid to Complainant a total of $23,690.84 and Complainant also purchased materials that Respondent used on the project. 5. Mr. Lowing filed with ROC a complaint against Respondent alleging abandonment and a number of workmanship deficiencies. 6. ROC investigator Randy Morris conducted a jobsite inspection on October 11, 2018. 7. On October 30, 2018, ROC issued to Respondent a Directive that required Respondent to remedy by appropriate means: Complaint Item 1: “Multiple leaks throughout irrigation system. Still not corrected after contractor notified” Complainant operated the rear yard irrigation system and noted above ground and below ground irrigation system leaks. Allegation is substantiated. Complaint Item 2: “Pavers have uneven layers of sand and not stamped evenly/gaps between pavers” Verified allegation, pavers are uneven and missing sand (gaps between pavers). Complaint Item 3: Concrete/mortar stains on sections of pavers near BBQ and seat wall” Verified allegation, mortar stains on paver surfaces around the seat wall and BBQ platform. Complaint Item 4: “BBQ counter is uneven/not level including attached bar top” Verified allegation, BBQ counter top is uneven, not square and of inconsistent width. Complaint Item 5: “Missing vent covers. Contractor attempted to use vent covers meant for indoor use” Verified allegation, no vent covers installed at the time of the job site inspection. Complaint Item 6: “Sections of stacked stone of BBQ missing mortar and stacked stone not placed how specified” Verified allegation, noted mortar voids at seat wall and BBQ platform. Unable to verify the allegation that the stone were not placed how specified, no contract submitted, verbal contract. Complaint Item 7: “BBQ cut out is not measured correctly and has yet to be installed” Verified allegation, BBQ burner unit was not installed at the time of the job site inspection and the opening provided is too small and not square. Complaint Item 8: “Flag stone for seat wall cut unevenly and noticeable gaps can be seen in mortar work” Verified allegation, stones are not cut evenly and mortar has cracking and voids. Complaint Item 10: “Large cracks in flagstone. These have not been replaced” Verified allegation, large cracks noted at flagstone at the seat wall, pieces flex and are subject to breakage. Complaint Item 11: “Electrical boxes for lights not mortared in place/electrical work can not be completed” Verified allegation, electrical boxes and wiring was not completely installed at the time of the job site inspection. Complaint Item 12: “Irrigation system incomplete/missing along perimeter and through pots” Verified allegation, irrigation system installed was not completely installed. Complaint Item 16: “Touch up mortar not correct color and is falling off” Verified allegation, repair mortar is of a different shade and is flaking off in places. Complaint Item 17: “Perimeter of pavers not cemented on 3 sides, possible movement over time” Verified allegation, edge pavers are not adequately seated on base and not secured in place to prevent movement; several edge pavers were loose and shifting at the time of the job site inspection. Complaint Item 18: “Interior section of BBQ has end pieces that are cut bluntly with no overlap” Complainant is also referring to cuts at the seat wall. Verified allegation, stone veneer edges are rough cut with sharp edges.

8. The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Lowing’s complaint were unsubstantiated. 9. The Directive required Respondent to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. November 16, 2018. 10. By agreement of the parties, ROC extended for a total of twenty days the deadline by which Respondent was required to show proof of compliance with the Directive. 11. On December 17, 2018, Mr. Morris conducted a compliance jobsite inspection and determined that the work ROC ordered it to complete had not been completed. 12. ROC issued to Respondent a Citation dated December 20, 2018. Through that Citation ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3), (A)(11), (A)(12), and (A)(22). 13. The matter was convened as scheduled on February 22, 2019, at which time the parties reached a settlement in principle. Consequently no evidence was taken. 14. The settlement called for Complainant to obtain two bids to have the work required by ROC’s Directive completed, with Respondent to pay the lower amount. 15. Complainant had difficulty obtaining bids, at least in part, because contractors were unwilling to take on the project considering the state it was in. Nevertheless, Complainant did obtain two bids, with the lower being for $53,113.67. 16. Respondent was unable to pay the total of $53,113.67 and the matter was reconvened on July 26, 2019. 17. At the hearing, Mr. Morris confirmed that the items listed in the Directive were items that did not meet the minimum workmanship standards. 18. Ms. Reister provided credible testimony that Complainant had requested a written contract from Respondent, which informed Complainant that one would be provided, yet never was. 19. Ms. Reister provided credible testimony showing that although Complainant had paid to Respondent about 90% of the agreed upon price and that Respondent had started most (if not all) the various component projects, Respondent had not actually completed any single item. 20. Ms. Reister provided credible testimony showing that there were long periods of time during which Respondent did no work at the home. 21. Mr. Taueli acknowledged that the evidence provided by Complainant was accurate and he said Respondent could offer no excuses. He stated that Respondent wanted to make Complainant whole, but it did not have sufficient financial resources to pay the $53,113.67 that Complainant’s low bidder required to undertake the project.

CONCLUSIONS OF LAW 1. 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. 2. “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). 3. “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). 4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. 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). 8. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 9. 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:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. ***** 3. Violation of any rule adopted by the registrar.

***** 11. Failure of a contractor to comply with any safety or labor laws or codes of the federal government, this state or political subdivisions of this state.

12. Failure in any material respect to comply with this chapter.

***** 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.

10. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 11. 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). 12. The preponderance of the evidence shows that Respondent effectively refused to perform its obligations under its contract in violation of Ariz. Rev. Stat. section 32-1154(A)(1). 13. The preponderance of the evidence shows that Respondent’s work was not performed in a professional and workmanlike manner in violation of Ariz. Admin. Code section R4-9-108(A), which is a violation of subsection 32-1154(A)(3). 14. It has not been shown by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(11). 15. The preponderance of the evidence shows that Respondent entered a contract with a value of greater than $1000, but did not have a written contract, which is a violation of Ariz. Rev. Stat. section 32-1158 and subsection 32-1154(A)(12). 16. The preponderance of the evidence shows that Respondent failed to comply with ROC’s Directive in the time allotted without justification for that failure, which is a violation of subsection 32-1154(A)(22). 17. Because Respondent has violated Ariz. Rev. Stat. section 32- 1154(A), ROC has authority to discipline its license, including imposition of a civil penalty. 18. A review of ROC’s website shows that Respondent has no prior disciplinary action against its license, which is a factor in mitigation. An additional factor in mitigation is Respondent acceptance of responsibility and remorse for its failure to complete the project. 19. Considering the facts and circumstances of this matter, particularly the nature and number of Respondent’s workmanship violations, Respondent’s license should be suspended for seven days, and it should be ordered to pay the maximum civil penalty of $500. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter Respondent A to Z Tauveli Landscape & Design LLC’s license No. 276019 be suspended for seven days; IT IS FURTHER RECOMMENDED that within fifteen days of the effective date of the final Order in this matter, A to Z Tauveli Landscape & Design LLC must pay to the Registrar of Contractors $500 in certified funds.

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, August 7, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826