ALJDEC decisions subject to certification as final
2018A-1258-CHC-ROC · Registrar of Contractors · 2018-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Thomas Sanger,
COMPLAINANT,
v.
Siesta Landscaping LLC dba,
Shade Covers by Siesta,
License No: 246242, 271597, 257782
RESPONDENT.
No. 2018A-1258-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 23, 2018, 1:00 P.M.
APPEARANCES: Complainant Liana Langer appeared on her own behalf; Albert Ramirez, Owner of Respondent, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Siesta Landscaping, LLC, dba Shade Covers by Siesta (Respondent), is the holder of License Numbers 246242, 271597, and 257782 issued by the Registrar of Contractors (Registrar).
2. On or about March 19, 2018, Thomas and Liana Sanger (Complainants), filed a Complaint against Respondent with the Registrar alleging abandonment and poor work by Respondent in connection with landscaping and hardscaping work performed by Respondent at Complainants’ residence in New River, Arizona. The Complaint reflected the contract amount of $62,882.05.
3. After an inspection performed by the Registrar on April 3, 2018, the Registrar issued a Directive, dated April 16, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 2, 2018, as follows:
Complaint Item 1: Missing the landscaping rocks, east side of driveway and in front of the Double Gates
Complaint Item 2: The Double Gates are very poorly attached, can be opened in high wind and big gap
Complaint Item 3: The Double Gates cannot remain shut, there needs to be blocks at the front and the back to hold Gates closed
Complaint Item 4: There is damage of the gates because they put the big machines against the gates
Complaint Item 5: They have buried concrete debris and broken rocks behind the planter walls
Complaint Item 6: Unfinished planter walls
Complaint Item 7: Unfinished the sprinkler system
Complaint Item 8: Unfinished electricity to the pergola
Complaint Item 9: One of the pergola support poles is damaged
Complaint Item 10: Unfinished pavers and now very dirty and debris everywhere, and the pavers are uneven to the west of the pergola
Complaint Item 11: Unfinished spreading the landscaping rock around the backyard
Complaint Item 12: Unfinished walkway around the planter walls to the covered patios
Complaint Item 13: Leaking at the left side of the covered patio and unfinished gutter at the covered patio
Complaint Item 14: Small hole on the right house walls (closed by the air conditioner)
Complaint Item 15: Broken landscape boulders
Complaint Item 17: Contractors work damaged walls shared by three separate neighbors. Not sure if the walls are adequately repaired
Complaint Item 19: Drainage for rainwater to egress from backyard currently not adequate.
Investigator’s Observation: This complaint item is substantiated.
Acceptable tolerance - Grades should be established to insure proper drainage away from the structure. No standing water should remain in the yard more than 48 hours after a rain, unless requirements specify retention of storm water in yard. Respondent shall correct by appropriate means.
Code requirement:
Pavers shall be 2” below the weep screed see R703.6.2.1 Weep Screeds.
R401.3 Drainage. Surface drainage shall be diverted to a storm sewer conveyance or other approved point of collection that does not create a hazard. Lots shall be graded to drain surface water away from foundation walls. The grade shall fall a minimum of 6 inches (152 mm) within the first 10 feet (3048 mm).
Exception: Where lot lines, walls, slopes or other physical barriers prohibit 6 inches (152 mm) of fall within 10 feet (3048 mm), drains or swales shall be constructed to ensure drainage away from the structure. Impervious surfaces within 10 feet (3048 mm) of the building foundation shall be sloped a minimum of 2 percent away from the building.
Governing Rule: §32-1154(A)(3) Namely RULE 4-9-108 WORKMANSHIP STANDARDS
A. A contractor shall perform all work in a professional and workmanlike manner.
Complaint Item 20: Contractor largely abandoned project not coming regularly to work if we don't give more money.
Investigator’s Observation: This complaint item is provided as informational and is not an item that I can inspect and report on at this jobsite inspection.
It is not uncommon for unforeseen conditions to occur in the construction industry. The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract.
Governing Rule: §32-1154. Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award
A. 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.
4. After been informed that the Respondent did not complete corrective work, the Registrar then issued a Citation to Respondent, dated May 7, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusing to perform without legal excuse for the abandonment);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
c. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing, setting a hearing for July 23, 2018, at 1:00 P.M. At the hearing, Complainant Liana Sanger testified on her own behalf; Albert Martinez, Owner of Respondent, testified on behalf of Respondent. Stephen Philpott (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 1 - 4.
6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He stated he performed a pre-hearing inspection on July 16, 2018 and most of the items were still incomplete.
7. Complainant Liana Langer testified that Complaint Item 1 in the Directive had been completed. With respect Complaint Item 8, she testified that the electricity had been completed but PVC pipe had yet to be painted. With regard to Complaint Item 15, she stated that the matter had been resolved because she had decided to remove the boulders. With respect to Complaint Item 17, although she acknowledged that the walls had been repaired, she was unsure whether her neighbors were satisfied with the repair to their walls. She stated that with respect to Complaint Item 19, although Respondent had taken care of the crown in the yard, she believed the effectiveness of the grading could not be substantiated because there had been no rain since and she believed Respondent had only taken care of one such spot in the yard. She further testified that the remaining items in the Directive were not completed.
8. Albert Ramirez, Owner of Respondent, testified on behalf of Respondent that many of the Directive items had yet to be completed. He agreed that Complaint Item 1 had been completed, that Complaint Item 8 relating to electricity had been completed, and that Complaint Item 17 regarding the repair to the walls had been corrected. He stated that Complaint Item 19 with respect to the grading had been taken care of after the pre-hearing inspection on July 19, 2018, when he removed a two inch hump in the yard. He acknowledged that in Complaint Item 19, the height of the weep screed due to adding pavers had yet to be resolved. .
CONCLUSIONS OF LAW
1. 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.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainants 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).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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.
...
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.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that any “[a]ny contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:
4. The estimated date of completion of all work to be performed under the contract.
...
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....”
7. A.R.S. § 32-1154(A)(1). Complainants have not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(1) for Respondent’s alleged abandonment or refusal to perform work without a legal excuse. Although Respondent did not complete the work, there was no evidence presented that Respondent abandoned the work or refused to perform any work. Respondent testified that work was performed as recently as July 19, 2018, and expressed a willingness to return to complete the corrective work.
8. A.R.S. § 32-1154(A)(3). Complainants have presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. Respondent acknowledged that Complaint Items 2, 3. 4, 6, 7, 9, 10, 11, 12, 13, 14, and 19 (relating to weep screed) in the Directive had not been fully completed. Complainant acknowledged that Complaint Items 1, 5, 8, and 15 in the Directive had been resolved.
9. The parties are in disagreement as to whether Complaint Items 17 and 19 (relating to the grading) had been completed. With respect to Complaint Item 17, Complainants acknowledged the repair done by Respondent but could not confirm whether their neighbors were satisfied with the repair to their respective walls. With respect to Complaint Item 19 relating to grading, Complainants again acknowledged Respondent’s corrective work but could not confirm without rain whether the proper slope was now present. Accordingly, as evidence was presented that Complaint Items 17 and 19 (relating to grading) have been repaired and Complainants have not presented evidence to the contrary, Complainants have failed to meet their burden that these repairs were not performed in a professional and workmanlike manner. Complainants have met their burden that Complaint Items 2, 3. 4, 6, 7, 9, 10, 11, 12, 13, 14, and 19 (relating to weep screed) were not performed in a professional and workmanlike manner.
10. A.R.S. § 32-1154(A)(12). Complainants have presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with Chapter 10 of Title 32 of the Arizona Revised Statutes. The evidence presented showed that Respondent had violated A.R.S. § 32-1158(A) because the contract between the parties was in excess of $1,000.00 and did not include a notice of the owner’s right to file a complaint with the Registrar or date for completion of the work. (Complainants’ Exhibit 1).
11. A.R.S. § 32-1154(A)(22). Complainants have presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. Although Respondent made efforts at corrective work, the evidence was uncontradicted that all Directive items had not been completed. Respondent presented no evidence of a valid justification for its failure to timely complete the corrective work.
12. Accordingly, Complainants have established that Respondent’s licenses should be disciplined for a violation of § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Siesta Landscaping, LLC, dba Shade Covers by Siesta, License Numbers 246242, 271597, and 257782 are suspended for two days.
In the event of certification of this 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 the certification.
Done this day, August 13, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors