ALJDEC decisions subject to certification as final
2018A-266-CHC-ROC · Registrar of Contractors · 2018-07-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Latsy Ann Parker,
COMPLAINANT,
v.
AZ Turf & More LLC,
License No: 314645
RESPONDENT.
No. 2018A-266-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 5, 2018, 1:00 P.M.
APPEARANCES: Complainant Latsy Ann Parker appeared on her own behalf; Tracy Teague, General Manager and Owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. AZ Turf & More, LLC (Respondent), is the holder of License Number 314645 issued by the Registrar of Contractors (Registrar).
2. On or about January 19, 2018, Latsy Ann Parker (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of artificial turf by Respondent at Complainant’s residence in Mesa, Arizona (“project”). The Complaint indicated a contract amount of $3,600.00.
3. The Registrar performed an inspection of the project on March 2, 2018. Thereafter, the Registrar issued a Directive, dated March 2, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 17, 2018, as follows:
Complaint Item 1: Turf not wide enough in 2 areas – patching was done – one patch visible.
Visible patched area of 3′ x 2′ in the artificial turf on north (N) side of back yard and, discernable patched area in the artificial turf, on the southwest (S/W) side of back yard.
Complaint Item 4: Grass is growing threw the artificial turf and spreading on top of the turf.
Weed activity growing thru the artificial turf in numerous areas in back yard area.
4. The Registrar conducted a compliance inspection of the project on March 27, 2018, and noted that corrective work had not been performed or completed. The Registrar then issued a Citation to Respondent, dated March 29, 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. § 32-1158(A) for failure to include required information in contract and 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 July 5, 2018, at 1:00 P.M.
6. At the July 5, 2018 hearing, Complainant Latsy Ann Parker testified on her own behalf. Respondent presented the testimony of Tracy Tingue, Owner and General Manager. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 18 and Respondent’s exhibit number 1.
7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that at the compliance inspection, he observed that at a seam was still visible in the artificial turf area next to the patio area of the backyard. He further testified that the seam at the rear area of the backyard had been corrected by Respondent and was no longer visible and that the weed issue had been mitigated. He further stated that Respondent had provided a new form contract to him that included the required elements of a contract and its license number.
8. Complainant Latsy Parker testified that Respondent came to her residence on two different occasions, March 2, 2018, and March 27, 2018, to perform repairs to the seams which she stated included cutting out a portion of the artificial turf and replacing it with a new turf patch. She indicated that Respondent resolved the weed issue and the seam at the rear area of the backyard but that the seam next to her backyard patio was still visible. She presented photographs from November 28, 2017 (Complainant’s Exhibit 5) and another from June 26, 2018 (Complainant’s Exhibit 18) of the seam next to her backyard patio. She stated that before the installation started and during the repairs she was told by Respondent that she would never even know the seams were there.
9. Tracy Tingue, Owner and General Manager of Respondent, testified on behalf of Respondent that seams resulting from the original installation of the artificial turf were unavoidable because the width of the yard was greater than the 15 foot width of the turf role. He indicated that seaming is a difficult process and that it only gets worse the more times you work on it. He testified further that ordering new turf to again patch the area would not resolve the issue because no two dye lots of turf are the same and the new turf would not match the color of the existing turf exactly. He stated that he believed that the seam was “not that bad” when viewing it from different angles and claimed it was only more pronounced because Complainant knew where the seam was. (Respondent’s Exhibit 1). He lastly stated that Respondent had come to the residence 15 times in total for installation and repair and that now there was nothing that could be done to repair the remaining visible seam.
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. 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.
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. § 32-1158(A) requires in pertinent part 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 shall contain the following information:
...
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. 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.
8. 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). The Tribunal has no reason to doubt Respondent’s testimony that the remaining artificial turf seam at this point cannot be repaired (i.e., the visibility of it cannot be eliminated or reduced), and that any further attempts at repair could make the seam worse or even more visible. However, the fact remains that the seams were visible in the first place after installation before any attempts were made to correct them. While it is understandable that seams were necessary due to the size of the yard, there was no evidence presented to suggest that visible as opposed to invisible (at least to a layperson) seams were unavoidable. In fact, one of the two visible seams was repaired by Respondent such that Complainant could no longer tell where the seam was. Respondent provided no explanation as to how one seam was repairable such that it was no longer visible and the other remaining seam was not.
9. Complainant’s testimony was credible that she was told by Respondent before the initial installation that artificial turf seams were necessary but that she would never know they were there. Further, although Respondent testified that the seam was not that discernible when viewing it from different angles, the seam was observable to Complainant and the Investigator and readily apparent in the photograph presented. (Complainant’s Exhibit 18). Accordingly, as there was no evidence presented that visible seams in artificial turf were unavoidable, the Tribunal finds the existence of the remaining visible seam to constitute a failure to perform all work in a professional and workmanlike manner.
10. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract and with A.R.S. § 32-1124(B) for the failure to include the ROC license number in the bid. The evidence presented showed that Respondent had submitted a new form contract to the Investigator that would appear to alleviate potential violations in that regard in the future.
11. 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. Despite Respondent’s efforts to attempt to correct the various deficiencies, there was no evidence presented of a valid justification for not successfully performing or completing the corrective work.
12. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) 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, AZ Turf & More, LLC’s, License Number 314645 is suspended for one day.
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, July 25, 2018.
/s/ Roger Geddes __
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors