ALJDEC decisions subject to certification as final

2018A-2373-CHC-ROC · Registrar of Contractors · 2018-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2018, at 1:00 p.m. APPEARANCES: Randi Zalas (“Complainant”) appeared on her own behalf;

K & N Landscaping LLC (“Respondent”) appeared through Alan Junior (“A.J.”) Breu, its qualifying party/member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about April 2, 2008, the Registrar issued License No. ROC243635 for Specialty Residential R-9 Concrete to Respondent. 2. On or about May 25, 2018, Complainant filed a complaint with the Registrar that alleged that Respondent had performed poor work on its contract to install Versa-Block concrete blocks, sod, pavers, and sprinklers at Complainant’s house at 205 S. Washington Ave., Prescott, Arizona 86303.[1] 3. Complainant attached to her complaint a copy of Respondent’s email promising to install 190 lf of Versa Block retaining wall with cap for $9,120.00, 800 sf of pavers for $7,600.00, and 420 sf of sod with 2 valves, box, controller and sprinklers for $2,310.00. The email did not include Respondent’s license number, payment provisions, or an estimated date of completion and did not inform Complainant about her right to file a complaint with the Registrar for violations of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A) or provide the Registrar’s telephone number and website address.[2] 4. The Registrar assigned the complaint to its Investigator, Jim Dimond, for investigation. Investigator Dimond performed a jobsite inspection on June 21, 2018, which Respondent did not attend. On July 6, 2018, Investigator Dimond issued a directive to Respondent to repair certain items on Complainant’s’ complaint on or before 5:00 p.m. on July 23, 2018, in relevant part as follows: ***NOTE- THIS RESPONDENT ONLY HOLDS AN R-9 RESIDENTIAL CONCRETE CONTRACTOR’S LICENSE AND HE CONTRACTED AND PERFORMED THIS WORK OUTSIDE OF THE SCOPE OF THIS LICENSE. THE RESPONDENT CAN ONLY REMEDY THIS COMPLAINT IN A MANNER PURSUANT TO THE ITALICIZED, BOLD AND UNDERLINED PARAGRAPH ON THE LAST PAGE OF THIS DIRECTIVE*** . . . .

Item 1- Excessive efflorescence- bleached only a portion- it’s different shades now The respondent is to resolve the condition in an appropriate manner.

Item 2- AJ wouldn’t replace the 2X4 wood sun bleached stains on Versa Block caps The respondent is to resolve the condition in an appropriate manner.

Item 3- Would not fix large gaps between paver steps-large enough to have a heel drop in The respondent is to resolve the condition in an appropriate manner.

Item 4- Installed blocks by stacking one on top of another instead of staggered blocks The respondent is to resolve the condition in an appropriate manner.

Item 5- Paver steps are separating due to poor installation The respondent is to resolve the condition in an appropriate manner.

Item 11- He didn’t finish the sprinkler install nor did he purchase sod nor install The respondent is to resolve the condition in an appropriate manner.

Item 13- He did terrible work and will not come back to fix it There is a dip in the southeast corner, caps were cut after the fact exposing gaps The retaining wall at the southeast corner of the house needs permitted and odd colored cap blocks were used.

The respondent is to resolve the condition in an appropriate manner. . . . .

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.[3]

5. After Complainant informed Investigator Dimond that Respondent had not complied with the July 6, 2018 directive, he referred the complaint to the Registrar’s Legal Department. On August 2, 2018, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(2) (Count 1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108 (Count 2), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A) (Count 3), A.R.S. § 32-1154(A)(16) (Count 4), and A.R.S. § 32-1154(A)(22) (Count 5).[4] 6. Respondent’s qualifying party/member A.J. Breu on its behalf filed a timely written answer to the Citation, stating in relevant part as follows: I contracted with Randi Zalas to complete a project at 205 S. Washington St. Prescott Arizona as a referral from a neighbor that I have been doing work for over 10 years. It originally was to be stamped colored concrete and was changed to pavers. . . . All building products were ordered and purchased at the same time based on the original square footage estimated. . . All items were completed except for the front area of the house, due to the fact that Randi was going to have a deck installed and the siding of the house remodeled which currently is still under construction. We mutually agreed on an amount to withhold and I would come back and complete once the house was completed . . . .

Several weeks after my departure, the pavers showed signs of “Efflorescence” (turning white) and some of the caps on the versa block began showing some discoloration from the others (I gather they cured out to their true color as they were palletized brand new until the install). These were all items that occurred well after completion. Randi brought these items to my attention and I had to do some investigation on how to remedy the pavers turning white. I used several recommendations to clean the pavers and finally found a resolution which has since been successfully completed. I also was attempting to figure out how to remedy the caps and was informed by Jimmy, Randi’s husband that they found someone to replace the versa block caps and she requested to be reimbursed therefore I sent her a check for $600 which she gave back to me after we rectified all issues. Weeks went by with no communication and then I received the directive from the ROC on July 06, 2018. I then contacted Randi to schedule a meeting to get all items rectified. We met and all items have been resolved by reconstruction as of July 31, 2018.

For the charges:

Charge 1: I submitted an over-the-counter permit application during this project on December 12, 2017 to the City of Prescott and they called me for 2 changes. I went to the office and they could not find what I submitted. During this I received conflicting feedback as I spoke to 2 different inspectors while working on the project on the necessity of a permit as the majority of the versa-block walls were less than 4’ tall. I re- submitted the permit on August 14, 2018 for the 9lf section of wall [illegible].

Charge 2: All items have been remedied by reconstruction.

Charge 3: I have attached the formal contract that I will be using that covers all ROC requirements and also have new business cards.

Charge 4: I will not contract beyond the scope of my license. I am currently in the process of studying to take the test for the R-21 Hardscaping and Irrigation Systems in which I was previously licensed for ROC No. 182451.

Charge 5: All items were completed in the directive to Randi Zalas (Complainants) satisfaction on or before July 31, 2018.[5]

7. The contract that Respondent attached to its written answer included Respondent’s license number, payment terms, and an estimated date of completion, advised the property owner of her right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), and provided the Registrar’s telephone number and website address. The business card that Respondent attached to its written answer showed its license number, preceded by the acronym, “ROC.” 8. An evidentiary hearing was held via videoconference from the Registrar’s Flagstaff office on October 24, 2018. Complainant testified and presented the testimony of her husband, James (“Jimmy”) Furman. Mr. Breu testified, presented the testimony of his son, Kasey Breu, who worked for Respondent on the project, and submitted nine exhibits on Respondent’s behalf. Investigator Dimond also testified. Hearing Evidence 9. Investigator Dimond testified that he sent Respondent letters about its violations of A.R.S. § 32-1154(A)(16) by contracting beyond the scope of its Specialty Residential R-9 Concrete license and A.R.S. § 32- 1154(A)(12), specifically A.R.S. § 32-1158(A), by not including all nine required elements in its contract with Complainant.[6] 10. Investigator Dimond testified that when Respondent performed the job, it only possessed a valid Specialty Residential R-9 Concrete contractor’s license, although in the past it had possessed an R-21 Hardscaping and Irrigation Systems License. Investigator Dimond testified that Respondent needed an R-21 license and an R-31 masonry license to perform the contract. 11. Mr. Breu testified that Complainant approached him to work on her home. Complainant made a sketch to show what she wanted.[7] Respondent prepared an estimate for what the work would cost.[8] Mr. Breu testified that although Complainant initially balked at the cost, she decided to go forward with the project after she saw work that Respondent had done for a neighbor. Mr. Breu testified that once Complainant agreed to the project, Respondent purchased in a lump order all the Versa-Block that it would need to complete the job so that the color would be uniform.[9] 12. Mr. Breu testified that once Respondent undertook construction, the project changed from design-build to “change as you go” and that Complainant changed the height, length, and location of many of the Versa-Block walls. The only change for which Respondent charged Complainant extra was a $90.00 charge for resetting the steps at Complainant’s request. Complainant has not paid for the change. 13. Kasey Breu testified that Complainant and Mr. Furman did not know what they wanted. Four or five times, they instructed Respondent to build a wall of a specific height, length, or radius or a number of steps that was not shown on Complainant’s drawing. 14. Respondent submitted photographs to show that Respondent had properly installed the Versa Block, including performing prescribed backfill with drain pipes, compacting the base, and setting the blocks level, and had used the correct tools.[10] Respondent submitted Mr. Furman’s text that the “Brick looks great!”[11] 15. Inspector Dimond testified that on October 9, 2018, he performed a prehearing jobsite inspection. He testified about his observations at that time of the conditions of the items on the Directive. Directive Item #1 16. Investigator Dimond testified that a walk in the front of the house enters a large field of pavers at the south end of the house. The pavers on the walk still show efflorescence and appear bleached. 17. Respondent submitted photographs of a City of Prescott Valley’s installation of the pavers that showed efflorescence.[12] Respondent did not call Investigator Dimond’s attention to these photographs. Directive Item #2 18. Investigator Dimond’s observation on his notes of his June 21, 2018 jobsite inspection was that “[t]here are a handful of cap blocks that have a lightened area that is consistent with a 2X4 sitting flat on top while out in the sun for an extended period. These should not have been installed.”[13] Investigator Dimond testified that at the prehearing inspection, a few of the handful of cap blocks had not been corrected. 19. Respondent submitted photographs from Chapter 4 of a promotional publication, entitled “Life with a Retaining Wall,” that showed different shades in the cap blocks on the Versa Blocks.[14] 20. Respondent also submitted a copy of the $600.00 check that it had tendered to Complainant, which she did not accept, to pay another contractor to replace the cap blocks.[15] Directive Item #3 21. Investigator Dimond’s observation on his June 21, 2018 jobsite inspection notes was that “[t]here is at the stoop for a future door and steps at the back of the treads have a large gap that in fact could be a hazard.”[16] Investigator Dimond testified that the future door was at the southeast corner of the house and, although he saw at the prehearing inspection that the gap had been repaired, the repair did not meet the Registrar’s minimum standards because there were still stains on the block. Directive Item #4 22. Investigator Dimond’s observation on his June 21, 2018 jobsite inspection notes was that “[t]he corners of the versa lok system are not installed properly and do not interlock and the corners strength are compromised.”[17] Investigator Dimond testified that the planters have a four or five courses of Versa Block and 3 inside corners and 2 outside corners. He testified that the blocks should have been set in an interlocking pattern to reinforce and strengthen the corners. 23. Investigator Dimond acknowledged that he did not detect any movement in the planters. 24. Mr. Furman testified that he had rocks in the planters because he did not dare put plants in them. 25. Mr. Breu testified that he had receipts for 41 tubes of adhesive, even though the job only required 15 tubes under the manufacturer’s specification. Mr. Breu testified that the Versa Blocks in the planters were well adhered to each other even though Respondent had not used the interlocking system on the planters. After historic rains, the walls of the planters had not moved. 26. Respondent submitted photographs from promotional materials of Versa Block that showed rows of block that were not staggered or that were incompletely staggered.[18] Most of the photographs did not show a corner; one photograph showed a corner of a wall on which the cap blocks were not staggered on the row underneath, but the first three courses of block appeared to have been staggered.[19] Another photograph showed a corner that did not appear to have been staggered on all three or four courses.[20] Respondent did not call Investigator Dimond’s attention to these photographs. Directive Item #5 27. Investigator Dimond’s observation on his June 21, 2018 jobsite inspection notes was that “[t]he steps at the future door need to be completely redone. [T]here are gaps at the treads where they meet the risers.”[21] Investigator Dimond testified that this condition had not been corrected at the time of the prehearing inspection. 28. Investigator Dimond acknowledged that Respondent was not required to remove the steps, only to resolve the issue. 29. Respondent submitted photographs from promotional literature, Chapter 6, “Step by Step,” that showed gaps between stairs and the adjacent wall,[22] gaps between the top surface and the first riser,[23] gaps between pavers on the steps and between the riser and the tread,[24] and gaps between the wall and the staircase.[25] Respondent did not call Investigator Dimond’s attention to these photographs. Directive Item #11 30. Investigator Dimond’s observation on his June 21, 2018 jobsite inspection notes was that the installation of sprinklers and sod “was contracted outside the scope of [Respondent’s] concrete license. Some of the sprinklers are in and 3 pipe penetrations to the basement for the valves have been installed.”[26] Investigator Dimond testified that no sod had been installed and that the condition of this item was unchanged as of the date of the prehearing inspection. Investigator Dimond testified that installation of both the valves and the sod was beyond the scope of Respondent’s R-9 concrete license. 31. Mr. Breu testified that Respondent did not complete installation of the irrigation system and sod because Complainant and Mr. Furman were installing siding and having other work done at that side of the house. 32. Respondent submitted an application to the Registrar for an R-21 license. According to the Registrar’s public website, on October 15, 2018, the Registrar issued License No. ROC322326 for Specialty Residential R-21 Hardscaping and Irrigation Systems to Respondent. Directive Item #13 33. Investigator Dimond’s observation on his June 21, 2018 jobsite inspection notes was that “[t]he caps had to be cut with a saw to [straighten] out the line and ended up exposing large holes behind the wall where the water intrusion will occur. . . . There is a dip in the patio at the southeast corner that needs [to be] corrected.”[27] Investigator Dimond testified that the 6’-tall retaining wall needed to be permitted. 34. Mr. Breu and Kasey Breu testified that when they informed Complainant and Mr. Furman that they would need a permit for the retaining wall, Complainant and Mr. Furman asked them not to get a permit but, instead, to pile dirt in front of the wall to make it appear shorter. 35. Investigator Dimond testified that at the prehearing inspection, Mr. Breu stated that Respondent was trying to get a permit from the City of Prescott. Investigator Dimond stated that although Respondent had applied for the permit, Respondent had not obtained engineering that was required for the permit. 36. Investigator Dimond testified that although the holder of an R-21 license may install a 3’-high retaining wall, the Registrar’s Legal Department confirmed that an R-31 license was necessary to construct a 6’-high retaining wall like the one at the jobsite. 37. Mr. Furman testified that the 6’-high retaining wall was the only wall that was straight and looked good on the job, and that it would have to be torn down. 38. Respondent submitted exhibits to establish that on December 1, 2017, it filed a site approval application with the City of Prescott, on January 18, 2018, it received a Permit Plan Review Comments Letter, on August 14, 2018, it submitted building permit application for a “Versa Block Planter Wall,” along with plans for the wall and its surrounding structures and photographs of the wall’s construction.[28] 39. Mr. Breu testified that the City of Prescott’s issuance of the permit was delayed because Complainant and Mr. Furman’s house was surrounded by historic structures, although it was not historic, and the city employee at the permit counter mistakenly thought that Respondent needed to comply with permit requirements for historic structures. 40. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date. Respondent’s R-9 license is current and in good standing and has never before been disciplined and this appears to be the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[29] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[30] Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.[31] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[32] A preponderance of the evidence is “[t]he 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.”[33] 4. Respondent acknowledged that his contract with Complainant did not include the nine elements required by A.R.S. § 32-1158(B).[34] However, Respondent attached to its written answer to the Citation a contract that conformed to the requirements of A.R.S. § 32-1158. Under the circumstances, because this is an administrative violation that would not entitle Complainant to any additional relief in this forum, the record does not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(12)[35] for a continuing violation of A.R.S. § 32-1158(A) (Count 3). 5. The scope of an R-9 license, which is the only license that Respondent possessed when it performed the contract, is limited to installing and repairing concrete, concrete products, and accessories common to the industry.[36] None of the work that Respondent performed that is at issue here was within the scope of its R-9 license; as Investigator Dimond testified the work involved in the project required an R-21[37] and an R-31 license.[38] 6. A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” “‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.”[39] “‘Knowingly’ means, with respect conduct or circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.”[40] It has long been the law in Arizona and elsewhere, however, that “’ [n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”[41] 7. Cause exists to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(16) (Count 4). However, the mere fact that Respondent contracted beyond the scope of its R-9 license does not establish that its workmanship fell below the Registrar’s minimum workmanship standards. Factors in mitigation of the penalty are that Respondent at one time possessed an R-21 contractor’s license and obtained another R-21 license before the hearing in this matter. An R-21 license would have allowed Respondent to perform all the work on the contract except for the 6’-high retaining wall. 8. Respondent constructed the 6’-high retaining wall without first making sure that a necessary permit had been obtained. A.R.S. § 32- 1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which 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.” (Emphasis added.) Respondent established that Complainant and Mr. Furman consented to Respondent building the 6’-high retaining wall without a necessary permit. 9. The Administrative Law Judge believes that because possible code violations may impact the public health and safety, requiring licensed contractors to wait until necessary permits have been obtained would better achieve the Registrar’s mission.[42] The issue here does not concern abstract public policy, however, but interpretation of unambiguous statutory terms. “A cardinal rule of statutory interpretation is to give full effect to each statutory word or phrase so that no part is rendered void, superfluous, contradictory or insignificant.”[43] Because Complainant and Mr. Furman consented to Respondent’s construction of the retaining wall even though they knew a necessary permit had not been obtained, Complainant did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(16) (Count 1). 10. With respect to the charged workmanship violations based on the items on the directive, the evidence establishes the following: 1. With respect to the efflorescence on the pavers at the south end of the house (Directive Item #1), as Respondent pointed out, efflorescence “exists in all portland cement-based products.”[44] However, the Registrar’s Workmanship Standards also provide that efflorescence may be excessive and require correction.[45] Inspector Dimond was aware of the Registrar’s standards at the times he issued the directive and performed the prehearing jobsite inspection. 2. With respect to the handful of cap blocks that have a lightened area that indicates cut wood was stored on the blocks during the time they were curing (Directive Item #2), Complainant established that the condition of the cap blocks that still show the discoloration violate the Registrar’s workmanship standards. 3. With respect to the steps at the stoop for the future door (Directive Item #3), Complainant established that although the gaps in the steps have been repaired, stains on the steps still need to be removed to comply with the Registrar’s workmanship standards. 4. With respect to the Versa-Block courses on the planters (Directive Item #4), Respondent established that the fact that the courses are not staggered does not compromise the integrity of the planters and is accepted in the industry. Because Respondent did not attend the initial jobsite inspection, it could not contest Complainant’s complaint about the pavers to Investigator Dimond. 5. With respect to the gaps between the risers and the treads at the future door (Directive Item #5), although Respondent established that steps constructed on Versa Blocks frequently have gaps, Investigator Dimond opined that the gaps were excessive and threatened the safety of persons who will use the steps. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3),[46] namely A.A.C. R4-9- 108[47] with respect to Directive Items #1, #2, #3, and #5, as noted above (Count 2). 11. Complainant established that Respondent failed to resolve Directive Items #1, #2, #3, and #5 before the deadline in the directive. Therefore, Complainant established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22)[48] (Count 5). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. ROC243635 of Respondent K & N Landscaping LLC shall be suspended for a period of one (1) business day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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 five days from the date of that certification. Done this day, November 2, 2018.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s electronic file at Intake Complaint Submittal1.pdf at 1-2. [2] See id. at 4. [3] The Registrar’s electronic file at Rcc014.Corrective Work Order.rtf. [4] See the Registrar’s electronic file at Rch424 Citation Multiple Charges Workmanship W221.rtf. [5] Respondent’s Exhibit 7; the Registrar’s electronic file at Lg Citation1.pdf. [6] See the Registrar’s electronic file at Warning Letter Out of Scope 321154a161.rtf; Warning Letter Elements of Contract 321158B1.rtf; see also id. at Warning Letter Display Of License 3211241.rtf (warning that A.R.S. § 32-1124(B) requires contractors to show their license number preceded by the acronym “ROC” on bids, contracts, business cards, and other documents used in their contracting business; because the Citation did not charge this violation, it is not addressed further in this decision); Warning Letter Building Permit Contractor1.rtf (because the Citation did charge a violation of A.R.S. § 32-1154(A)(2), it will be addressed further in this decision). [7] See Respondent’s Exhibit 2. [8] See Respondent’s Exhibit 1. [9] See Respondent’s Exhibit 8 (receipt). [10] See Respondent’s Exhibit 6. [11] Respondent’s Exhibit 4 at 1. [12] See Respondent’s Exhibit 5 at 4, 5, and 6. [13] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [14] See Respondent’s Exhibit 5 at 3. [15] See Respondent’s Exhibit 9. [16] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [17] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [18] See Respondent’s Exhibit 5 at 7 (“Chapter 1: For Homes and Gardens”), (“Chapter 3: Gardening”), 10 (“Chapter 3: Gardening”), and 16 (“Chapter 6: Step by Step”). [19] See Respondent’s Exhibit 16. [20] See Respondent’s Exhibit 5 at 1. [21] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [22] See Respondent’s Exhibit 5 at 1. [23] See Respondent’s Exhibit 5 at 8. [24] See Respondent’s Exhibit 5 at 14. [25] See Respondent’s Exhibit 5 at 15. [26] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [27] The Registrar’s electronic file at Rcc100 Jobsite Inspection Notes1.rtf. [28] See Respondent’s Exhibit 3. [29] See A.R.S. § 32-1154(A). [30] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [31] See A.A.C. R2-19-119(B)(2). [32] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [33] Black’s Law Dictionary at page 1220 (8th ed. 1999). [34] A.R.S. § 32-1158(A) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction 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 ten point bold type. . . . [35] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [36] See A.A.C. R4-9-103(B). [37] The scope of an R-21 license for Hardscaping and Irrigation Systems is as follows: This classification allows the licensee to install, alter, and repair: . . . . 2. Uncovered patios, walkways, driveways made of brick, stone, pavers or gravel. . . . . 4. Decorative garden walls up to six feet from finish grade. . . . . 6. Retaining walls up to three feet from the finish grade of the lower elevation. . . . . 10. Irrigation systems, including any necessary: electrical wiring of 120 volts or less, connection to potable water lines, backflow prevention devices, hose bibs, excavating, trenching, boring, backfilling, or grading. A.A.C. R4-9-103. [38] The scope of an R-31 masonry license is as follows: This classification allows the licensee to grout, caulk, sand blast, tuckpoint, mortar wash, parge, clean and weld reinforcing steel as required for the licensee to install and repair: 1. Masonry 2. Brick 3. Concrete Block . . . . 9. Mortar free masonry products [39] A.R.S. § 1-215. [40] A.R.S. § 13-105(6)(b). [41] Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 215 P. 1036, 1038). [42] See Laws 1985, Ch. 334, § 1 (“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 . . . .”); Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981) (“[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.”). [43] Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (App. 1992). [44] Workmanship Standards for Licensed Contractors at 8 (June 2009). [45] The Workmanship Standards provides the following explanation: Efflorescence is a salt that is left on the surface of concrete upon drying and is generally of only cosmetic concern in nature. It often dissipates with contact with water or the passage of time. Efflorescence that is severe, recurring, or accompanied by degradation of the concrete surface may indicate the application of excessive moisture, an elevated concentration of salts in the applied water, numerous cycles of wetting and drying and/or a more substantial presence of salts within the surrounding environment. Id. [46] 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.” [47] 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.” [48] 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.”

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