ALJDEC decisions subject to certification as final

2018A-05349-ROC · Registrar of Contractors · 2019-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2019. APPEARANCES: Mark Pratt, Complainant’s spouse; Jeremy Wiley, Respondent; Rustin Averyt, Respondent; Robert Averyt, Respondent Witness; Jim Dimond, ROC Inspector. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson. _____________________________________________________________________

FINDINGS OF FACT Respondent, L A Lawn, Inc., (hereinafter, “LAL”) is the holder of ROC License Number 305826 first issued by the Arizona Registrar of Contractors (ROC) on July 27, 2016[1] On or about October 3, 2018, Complainant Bonnie L. Pratt (hereinafter, “Pratt”) entered into a contract with LAL to Remove old turf and haul away, replace with new. Backyard install….Install turf with the pure polyethylene fiber and Turf Tec polyurethane backing; Supply and install manufacturers patented fill system with silica sand to stimulate the look and feel of natural Bermuda or Rye grass. Zeofill deodorizer infill included.[2]

On or about November 7, 2018, the ROC received a Complaint against LAL from Pratt alleging LAL misrepresented material facts to induce Pratt to contract with LAL. Specifically, Pratt’s Complaint asserts that the installed artificial turf does not abate or suppress the odor of Pratt’s dogs’ urine. Pratt complains that LAL assured Pratt that the “odor would not be an issue due to deodorizing being installed with the grass.” [3] The Registrar assigned the complaint to Investigator Jim Dimond. After notice to the parties, Investigator Dimond conducted a Job Site Inspection [“JSI”] of the Pratt residence. At the JSI, Pratt and a representative of LAL appeared. Inspector Dimond recorded in his JSI Notes[4] the following: At issue is an “odor” therefore no pictures were taken. Complaint Item 1: The artificial grass installed already is having issues with odor. We were assured this would not happen. We were assured on multiple occasions before agreeing to contract that odor would not be an issue due to deodorizer being installed with the grass.

Investigator’s Observation: The complainant relayed that the project was to replace the existing artificial turf that was at the end of its life. That grass apparently was treated with a deodorizer that minimizes pet waste odors. I did note an area of odor near the tree in the center of the yard. Governing Rule: Statute ARS 32-1154.A.(2).

On or about January 3, 2019, Investigator Dimond issued a Written Directive [the “Directive”] to LAL that provided as follows: You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 19, 2019. You are hereby directed to remedy the following violations by the appropriate means:

Item - The artificial grass installed already is having issues with odor. We were assured this would not happen. We were assured on multiple occasions before agreeing to contract that odor would not be an issue due to deodorizer being installed with the grass. The respondent is to correct the condition in an appropriate manner.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the Written Directive, LAL did not comply as directed on or before the January 19, 2019 deadline in the Written Directive. On February 20, 2019, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3) - R4-9-10[5] and A.R.S. § 32-1154(A)(22).[6] A hearing was held on May 3, 2019 before the Office of Administrative Hearings, an independent state agency. Investigator Dimond testified at hearing that at the December 19, 2018 Jobsite Inspection he discussed with Pratt and the LAL representative the issue presented by Pratt in its Complaint that the artificial turf installed by LAL was given an application of a product named “Zeofill” which was sold to Pratt under the contract of the parties. Notwithstanding the application of Zeofill, a portion of the turf located near a tree in the back yard seemed to Inspector Dimond to smell of dog urine. Investigator Dimond stated that Pratt pointed out an area, Dimond knelt down to his knee and did smell what he believed was an odor of dog urine. He said that although he did not see them, he believed he heard three dogs that were on the property.[7] Inspector Dimond advised that his knowledge of the Zeofill product applied to this turf was learned from a Zeofill advertisement provided him by the Complainant.[8] When asked, Inspector Dimond admitted that there is no workmanship standard describing the application of or use for Zeofill or any other turf deodorant. He agreed that there is no standard, objective measurement of which he was aware to test for the strength of odor of dog urine other than his opinion that he smelled dog urine at the Pratt home’ turf area. He agreed that he has not been provided any written product warranty for the Zeofill product from LAL to Pratt. On cross-examination, Inspector Dimond admitted that “the Registrar’s Standards do not address pet urine odor” in turf installation and that “…the Registrar’s Standards do not address application of products used with turf to deodorize. Relying upon Pratt’s assertion that the Zeofill was never applied to the turf,[9] Investigator Dimond stated his basis for determination that LAL’s installation of the turf that persists in carrying dog urine odor was below workmanship standards because, he said, the odor demonstrated a failure to follow plans and specifications. Complainant Pratt testified that the sole reason Pratt decided to use LAL for this project is that the salesman for LAL assured Pratt that the application of Zeofill would prevent dog urine odors. Pratt stated that they have four dogs at their home which use the turf area urinate on a routine and regular daily basis. Pratt admitted that little to no attention was paid by Pratt to maintain the Zeofill other than occasionally watering the turf area. Pratt is aware that LAL is not the manufacturer of the Zeofill product. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 21, 2019. Such prior License record reflects that Respondent’s License was first issued on July 27, 2016 and has never been disciplined. Historically, the only Complaint against LAL is the Pratt Complaint.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 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). A.R.S.§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: . . . . 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. . . . . 7. The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

No evidence was introduced to prove LAL violated or attempted to violate A.R.S. § 32-1154(A)(2) or (7) as asserted by the Compliant (but not specifically alleged in the Citation). Platt, for all intents and purposes, poses a claim that the product Zeofill (which Platt contracted to be, and was, applied as part of the turf installation on this job) does not perform to eradicate the odor of dog urine. There is no evidence that LAL warranted or otherwise guaranteed that the Zeofill was “fit for a particular purpose.” The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[10] Such a claim might be made in court having different subject matter jurisdiction. The goals and objectives of the Registrar of Contractors are to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in residential construction....”[11] “[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.[12] The case presented herein is not seeking regulation of the contractor by imposing discipline as a result of a contractor’s failure to provide work that was up to workmanship standards. Rather, Platt seeks to discipline LAL for the failure of a product not manufactured or distributed by LAL to remove or forestall the odor of dog urine. Such a claim belongs not with the Registrar, but instead belongs in a civil court as a cause of action seeking money damages and consequential damages against the manufacturer of Zeofill. That a product fails to perform as represented by the manufacturer does not present a workmanship standards violation where imposing contractor discipline is a proper remedy. Instead, the Platt claim presents a claim that most likely rests against the manufacturer of the Zeofill product. A contractor is subject to discipline for violation of any rule adopted by the Registrar. A.R.S. § 32-1154(A)(3). Licensed contractors in Arizona are required to warranty work for two years against defects as defined in published standards and the general standard of care in the construction industry.[13] The Registrar’s Citation charged LAL with violating A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. As to the issue of poor workmanship, the credible evidence presented at hearing established that there are no Registrar Standards regulating the use or the application of odor treatments such as Zeofill. There is no evidence of record that Zeofill was installed contrary to manufacturer’s specifications. There is no evidence of record the LAL applied the Zeofill incorrectly or improperly. There is no evidence that LAL failed or refused to apply the Zeofill to the turf in this case. LAL is not the manufacturer of the Zeofill product. Therefore, Pratt failed to establish by a preponderance that LAL performed is work below a professional or workmanlike manner in violation of A.A.C. R4-9-108, or thereby of A.R.S. § 32-1154(A)(3).[14] Inasmuch as there is no evidence supporting the contention that LAL’s work was below workmanship standards, Pratt necessarily has failed to establish by a preponderance of the evidence that Respondent violated A.R.S. § 32- 1154(A)(22).[15] This case should be dismissed. RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that the Registrar shall dismiss its Citation and the Complaint filed by Bonnie L. Pratt against L A Lawn, Inc., License number 305826. 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 40 days from the date of that certification. Done this day, May 21, 2019.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] See, Exhibit C-1. [3] Complaint, Agency Record, pages 19 and 20. [4] JSI Inspection Notes, Agency Record, page 6. [5] Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code [6] 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. [7] Mr. Dimond also stated that he later became aware that Pratt actually kept four medium sized dogs on the property. [8] Agency Record, pages 9 and 10. [9] No evidence was introduced to prove “Zeofill” was not applied on this project by LAL. . [10] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [11] Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981). [12] See Laws 1985, Ch. 334, § 1 [13] See A.R.S. § 32-1155(A) [14] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [15] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

-----------------------

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