ALJDEC decisions subject to certification as final

2018A-2375-CHC-ROC · Registrar of Contractors · 2018-10-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 2018, 8:30 A.M. APPEARANCES: Complainant Gabriel Massey appeared on his own behalf; Francisco Campo, owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

FINDINGS OF FACT Background and Procedure 1. Cisco Development, LLC (Respondent), is the holder of License Number 309609 issued by the Registrar of Contractors (Registrar). 2. On or about May 25, 2018, Gabriel Massey (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with Respondent’s installation of a swimming pool deck at Complainant’s residence in Gilbert, Arizona (“project”). The Complaint reflected a contract amount of $13,544.63. 3. The Registrar performed an inspection of the project on June 13, 2018. Thereafter, the Registrar issued a Directive, dated June 20, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by July 9, 2018, as follows: Complaint Item 1: Excessive settling of travertine paver; sinking in several areas up to 1/2 in Investigator’s Observation: The installation has areas of uneven pavers and pavers with lippage over 1/8". Pavers should not have lippage over 1/8" and should not have excessive dips or sags over short distances. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #8 and #9 Complaint Item 2: Travertine pavers coming loose in several areas Investigator’s Observation: In select areas the travertine pavers move when walked on and are not solidly bedded. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #9 Complaint Item 3: Travertine deck joint with the pool coping enlarging Investigator’s Observation: In one area the travertine pavers are separating from the pool coping by approx. 1/4" +. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #6 Complaint Item 4: Travertine tiles installed up-side down in several places Investigator’s Observation: Several pavers are upside town and need to be reinstalled. Governing Rule: Industry Standard: Complaint Item 6: Missing grout between travertine pavers (polymeric sand) Investigator’s Observation: In some areas the joint sand is missing, most notably where the pavers have shifted. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers Complaint Item 9: Sunken areas in raised areas and in regular flat areas causing water to pool Investigator’s Observation: The installation has areas of uneven pavers or low spots that pond water over 3/32" after flood testing. Most notably at the deco drain (water pools and doesn't make it to drain) and at the large raised platform. Water should drain. Standing water exceeding 3/32" is unacceptable. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #3 Complaint Item 11: Deck drain loose and shifted causing bad water drainage Investigator’s Observation: The deck drain may have shifted along with the settling of the pavers in the area around it. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #9 Complaint Item 13: Visible cut lines in the travertine - several locations (fire pit, around pool) Investigator’s Observation: Several inside corners at the pool and the fire pit show cut lines from the saw. This is not typical in the industry and should not be visible. Deficiency should be repaired by appropriate means. Governing Rule: Industry Standard: Complaint Item 15: Travertine cuts are not consistent and not straight - columns, house, fire pit Investigator’s Observation: Some variation in joints at vertical surfaces, i.e. house, fire pit, columns, etc., is expected. However, at the house the joint is not consistently filled and some of the pavers near the door are not cut square with each other. Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: ROC Workmanship Standard for Interlocking Pavers #6 Complaint Item 19: Step to the raise pool deck is not symmetrical to the rest of the walk way(wall) Investigator’s Observation: At the large platform behind the pool the step is not square to the platform or pool. It is very noticeable and off by over 1". Deficiency should be repaired by appropriate means. Governing Rule: Workmanship Rule: R4-9-108 4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated July 10, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1124(B) for failure to include license number in bid); c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for September 11, 2018, at 8:30 A.M. 6. At the September 13, 2018, hearing, Complainant Gabriel Massey testified on his own behalf. Respondent presented the testimony of Francisco Campo, owner of Respondent. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 1 - 10 and Respondent’s exhibit numbers 1 - 2.[1] 7. The Investigator on behalf of the Registrar testified that Matt Gunstra, the original investigator for the Registrar, was no longer with the Registrar. He further testified as to Mr. Gunstra’s inspection of the project and the Directive issued by the Registrar as a result of Mr. Gunstra’s observations. He also testified that he personally performed a pre-hearing inspection on September 12, 2018, and observed that Complaint item numbers 1, 3, 4, 9, 11, 13, and 15 of the Directive had not been completed and that Complaint item numbers 2, 6, and 19 (with the exception of some damaged tiles) had been completed. With respect to Complaint item number 19, he stated he did not take measurements of the step to confirm the variance alleged by Complainant. 8. Complainant Gabriel Massey testified that Complaint item numbers 1, 4, 9, 11, 13, 15 and 19 of the Directive had not been completed and that Complaint item numbers 2, 3, and 6 had been completed. With respect to Complaint item number 9 regarding water pooling on the deck, he submitted that the deck should have been sloped away from the house by Respondent to allow for proper drainage. 9. Mr. Massey further testified that he allowed Respondent access to the property to perform corrective work both before and after the Directive deadline. He further stated that Respondent performed corrective work from July 23-25 and left and removed all of the equipment and that the workers caused additional issues and did not address all of the Directive items. 10. Francisco Campo, owner of Respondent, testified on behalf of Respondent that he did not generally dispute the existence of the Directive items, although he contended that Complaint item number 1 (settling of pavers) and item number 9 (water pooling) were not Respondent’s responsibility. With regard to water pooling, he maintained that he installed the pavers on an existing concrete sub-base and therefore he followed the level of the existing surface. He further contended that the adjoining yard was two to three inches higher than the deck which prevent proper drainage. He further stated that the deck drains were also clogged and that Complainant acknowledged that gutters needed to be installed. 11. Mr. Campo testified further that although Respondent was unable to perform corrective work before the Directive deadline, that Complainant allowed Respondent’s workers to perform corrective work from July 23 - 25 but that the project was not completed. He stated thereafter he asked Complainant for a final walk through, but that Complainant never responded. 12. Mr. Campo acknowledged that Respondent’s original bid to Complainant did not contain Respondent’s license number. (Complainant’s Exhibit 1). 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, Complainant 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:

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….

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 Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1124(B) requires in pertinent part that:

The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.

7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). With respect to the Complaint items that Respondent directly contested, despite the fact that Complainant has proven they are uncorrected, Respondent did not provide sufficient evidence to establish that the settling of the pavers, (Complainant’s Exhibit 10), was not Respondent’s responsibility nor was it unforeseeable or unavoidable. Respondent further did not establish that it could not have properly sloped the deck even though the pavers were placed upon an existing concrete sub-base. Regarding the pooling of water, the evidence presented was not sufficient to show that the adjoining yard was the cause of the drainage problems or that the deck drains themselves were the cause of the lack of drainage. Rather, Complainant’s evidence demonstrated that the pooling was not in the area of the drain. (Complainant’s Exhibit 10). Accordingly, Complainant has established cause to discipline Respondent’s license with respect to Complaint item numbers 1, 4, 9, 11, 13, 15 and 19 (including the variance) of the Directive. 8. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent to comply with A.R.S. § 32-1124(B) for the failure to include the ROC license number in a bid. The evidence was uncontradicted that the contract amount for the project was $13,554.63 and Respondent acknowledged that his original bid to Complainant did not contain Respondent’s license number. (Complainant’s Exhibit 1). 9. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. The evidence was uncontradicted that Respondent started corrective action but did not complete it. Respondent’s contention that Complainant would not permit any further work is not borne out by the evidence and therefore does not support a finding that there was a valid justification for Respondent not completing the corrective work. Respondent had ample opportunity to complete the Directive items and apparently believed it had completed them as demonstrated by removing its equipment and requesting a walk through with Complainant. That Complainant may not have agreed to do a walk through with Respondent is not a prerequisite to Respondent completing the items. The Directive provided adequate notice to Respondent as to what needed to be corrected, and Respondent did not complete the items. 10. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 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, Cisco Development, LLC’s, License Number 309609, .is suspended for two days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $200.00 in certified funds on or before 30 days from the effective date of this Order.

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 final 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 the outstanding prior civil penalty. 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, October 3, 2018.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s file.

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

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