FINACT2018A-3443-CHC-ROC.pdf

2018A-3443-ROC · Registrar of Contractors · 2019-05-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Utpaul Chakravorty, Case No. 2018-3443 COMPLAINANT, Docket No. 2018A-3443-CHC-ROC v. D & L Landscape and Design LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 241687, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on June 11, 2019.

Dated May 2, 2019.

Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail May 2, 2019 to: Respondent D & L Landscape and Design LLC 44064 W Neely Dr Maricopa, AZ 85138 Florence M Bruemmer 42104 N Venture Court Ste A122 Anthem, AZ 85086 Complainant Utpaul Chakravorty 7704 W Questa Dr Peoria, AZ 85383 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Office of Administrative Hearings Thomas Sheddon, Administrative Law Judge

Case No. 2018-3443 / DE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.15.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Utpaul Chakravorty, No. 2018A-3443-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

D & L Landscape and Design LLC, License No. ROC 241687,

RESPONDENT HEARING: March 26, 2019 APPEARANCES: Utpaul Chakravorty on his own behalf; Florence M. Bruemmer, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

1. On January 16, 2019, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on March 12, 2019 at the Office of Administrative Hearing. 2. The matter was continued and the hearing was conducted on March 26, 2019. 3. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and complaint.1 4. Respondent D & L Landscape and Design LLC, holds license No. 241687 issued by ROC. Marco Antonio Pardo is D & L’s qualifying party. 5. In November 2017, Complainant Utpaul Chakravorty, M.D. and his wife hired D & L to do certain work at their house. Although each party signed an agreement/scope of work on that date, as work progressed the parties altered their agreement more than once, and the full scope of work is not clear on this record. Mr. The NOTICE OF HEARING does not provide the date the CITATION was issued or when the complaint was issued or filed. There appears to be no dispute that ROC issued the CITATION on December 10, 2018, or that Dr. Chakravorty filed with ROC a complaint against Respondent on July 27, 2018. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.15.2019 ROC LEGAL

Pardo testified to the effect that there never was a complete scope of work and that things were changing as work progressed. 6. At some point during the time at issue, the parties entered into a business

deal in which Dr. Chakravorty and his wife were to pay to D & L $3000 a month for work

to be completed at the subject property or other properties owned by the Chakravortys

and in which Dr. Chakravorty would market D & L’s services. According to Mr. Pardo,

the Chakravortys made several payments to D & L for these business related services.

7. A dispute arose between the parties regarding the financial aspects of

their agreements. At the hearing, D & L took the position that Dr. Chakravorty owed it

$56,399. Although Dr. Chakravorty did not directly dispute this, D & L’s Exhibit F shows

that he believed that D & L owed him $82.

8. Through a Notice dated June 18, 2018, Dr. Chakravorty informed D & L

that it could no longer come on his property. He also informed D & L that he was not

satisfied with various aspects of its work and he issued a demand for repayment of

$6500 in exchange for not filing complaints with ROC, the BBB, and the Attorney

General’s Office. Dr. Chakravorty rescinded the Notice on September 21, 2018, which

was after he filed his complaint with ROC. 9. On July 27, 2018, ROC received from Dr. Chakravorty a complaint against D & L. Before Dr. Chakravorty filed his complaint with ROC, contractors in addition to D & L had worked on his property. 10. ROC assigned Investigator Timothy Pennington to Dr. Chakravorty’s complaint. Mr. Pennington conducted a jobsite inspection and a compliance jobsite inspection. 11. The record includes three DIRECTIVES, dated September 28, October 4, and October 23, 2018, through which ROC ordered D & L to: (1) ensure that any required permit for gas line work was obtained (Complaint Item 6); (2) to ensure that any required permit for electrical work was obtained (Complaint Item 7); (3) to remedy a Fire Display that was not working (Complaint Item 17); and (4) to remedy visible seams in artificial turf that D & L had installed (Complaint Item 22). RECEIVED 4.15.2019 ROC LEGAL

12. ROC’s DIRECTIVES show that ROC had determined that any other workmanship violations alleged in Dr. Chakravorty’s complaint were unsubstantiated. 13. Mr. Pennington conducted a compliance jobsite inspection on December

6, 2018. At that time, Mr. Pennington found that all items except Item 22 had been

properly corrected.

14. On December 10, 2018, ROC issued to D & L a CITATION.

15. Through the CITATION, ROC alleges that D & L may have violated ARIZ.

REV. STAT. sections 32-1154(A)(2), (A)(3), (A)(12), and (A)(22). The CITATION shows

that ROC could not determine whether D & L had actually committed any of the alleged

violations, which is why the matter was set for hearing. The CITATION also shows that

the CITATION itself is not evidence that D & L has violated any statute or rule.

16. The CITATION shows that if the Administrative Law Judge finds that any of

the alleged charges are valid, ROC may suspend or revoke D & L’s license.

17. Prior to the hearing, Mr. Pennington left the employ of ROC. On February

28, 2019, ROC Investigator Jim Dimond inspected Dr. Chakravorty’s property.

18. Mr. Dimond’s inspection was limited to the artificial turf because Dr.

Chakravorty was unwilling to let him look at the gas lines, which had been red-tagged, and Mr. Dimond did not look at the Fire Display. 19. Mr. Dimond testified at the request of D & L. The Permits 20. D & L did not install any gas or electric lines on Dr. Chakravorty’s property, and its work was limited to connecting appliances to lines that were installed by other contractors. The other contractors had obtained permits, but those permits had expired before D & L did any work at the site. 21. There was no substantial evidence adduced to show that the work D & L performed required either a gas permit or an electrical permit. 22. Mr. Dimond confirmed that D & L had obtained the permits that ROC in its DIRECTIVES had ordered D & L to obtain.

RECEIVED 4.15.2019 ROC LEGAL

23. Mr. Dimond observed that gas line work had been red-tagged by the City, but the Dr. Chakravorty was unwilling to discuss that work with Mr. Dimond during his inspection in February 2019.

24. Dr. Chakravorty’s personal assistant, Terry Shattuck opined that the work

was red tagged was because the gas lines were buried or under counter tops and could

not be inspected.

Fire Feature

25. During Mr. Pennington’s jobsite inspection, a remote controlled Fire

Display was not operational.

26. Mr. Pardo’s initial thought was that the batteries in the remote might be

bad. As it turned out however, the Fire Feature was not working because a low-voltage

line, which is part a of a safety feature, was open. The evidence of record does not

show that this was a workmanship issue.

27. To fix the problem, Mr. Pardo obtained a replacement remote control and

made a related change at the control box. The exchange was covered under the

manufacturer’s warranty and was completed the day of Mr. Pennington’s first

inspection. Artificial Turf 28. D & L installed artificial turf in two or three areas of Dr. Chakravorty’s yard: an area or areas by the pool and an area referred to as the lower area. It is only the turf in the lower area that is at issue. 29. Another contractor installed turf near the west patio. 30. An area by the pool had existing turf when D & L did its work. Because Dr. Chakravorty and his wife did not want to buy enough turf for all areas, they had D & L reuse the old, existing turf from the pool area in the lower area, with all new turf installed in the area or areas by the pool. 31. The used turf that was salvaged was of lower quality and it had to be pieced together. D & L did not charge Dr. Chakravorty for installing the used turf in the lower area. RECEIVED 4.15.2019 ROC LEGAL

32. There is no workmanship standard that specifically addresses installation of artificial turf. 33. Mr. Pennington had found that there were gaps and improper seams in

the lower area. But there was no evidence presented at the hearing showing the size or

number of the gaps, why the seams were improper, or what standard or standards Mr.

Pennington was using.

34. According to Mr. Dimond, seams will always be visible in artificial turf. He

was of the opinion that the artificial turf installed in the lower area had not been

properly repaired, but he did not provide any quantitative information as to the nature of

any alleged defects. Mr. Dimond also added that he understood there to be

circumstances related to installation of the turf at the lower area, but he was not privy to

the details. He subsequently acknowledged that he was referring to the fact that D & L

had not charged Dr. Chakravorty for installing the turf in the lower area.

35. Dr. Chakravorty’s opinion was that the turf in the lower area could not be

properly repaired, but rather needed to be replaced.

36. Mr. Pardo acknowledged that there were spots in the lower area that did

not look good, but he testified to the effect that the Chakravortys had told D & L not to worry about that. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41- 1092.07(G)(3). 4. A preponderance of the evidence is: RECEIVED 4.15.2019 ROC LEGAL

The 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. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The preponderance of the evidence does not show that D & L is unscrupulous, unqualified, or financially irresponsible. 9. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. But the Administrative Law Judge is not required to search the record to ascertain the parties’ positions and arguments. See Best Choice Fund, LLC v. Low & Childers, PC, 228 Ariz. 502, 269 P.3d 678 (App. 2012). 10. ARIZ. REV. STAT. section 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 this state or any political subdivision of this 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 RECEIVED 4.15.2019 ROC LEGAL

operation completed in accordance with such plans and specifications and code. ***** 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…. 11. ARIZ. ADMIN. CODE section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 12. ARIZ. REV. STAT. section 32-1124(B) provides that: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee on demand. 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. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 12, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to RECEIVED 4.15.2019 ROC LEGAL

the members of the association and not to the general public.

13. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 14. The preponderance of the evidence does not show that D & L violated ARIZ. REV. STAT. section 32-1154(A)(2) because the evidence does not demonstrate that D & L’s work required permits, nor does it show that D & L agreed to obtain any permits as part of its scope of work. 15. The preponderance of the evidence does not show that D & L violated ARIZ. REV. STAT. section 32-1154(A)(3) by failing to perform its work in a professional manner. With regard to the Fire Feature, the evidence shows that the feature was not working because a safety feature had been tripped and that the manufacturer’s warranty covered the replacement remote control, not that D & L’s work was substandard. 16. Regarding the turf in the lower area, there is no workmanship standard setting tolerances for artificial turf installation, and although there was evidence in the form of opinions that the work was not acceptable, there was no evidence identifying the standard(s) that were applied and there was no evidence on which to verify those opinions (e.g. the size and number of any gaps, or the length of any seams that were thought to be flawed). In addition, seams will always be visible in artificial turf, the turf that was installed was used, there was some evidence to show that Dr. Chakravorty was aware that reusing this turf might not yield results as good as the new turf that was installed, and Dr. Chakravorty was not charged for the installation of the used turf. 17. The preponderance of the evidence does not show that D & L violated ARIZ. REV. STAT. section 32-1154(A)(12).2 18. The preponderance of the evidence does not show that D & L violated ARIZ. REV. STAT. section 32-1154(A)(22) by failing to comply with the DIRECTIVE without

2 It is not even clear what part of ARIZ. REV. STAT. section 32-1124(B) D & L is alleged to have violated. RECEIVED 4.15.2019 ROC LEGAL

substantial justification because it was not proven that D & L actually committed any of the alleged deficiencies. 19. Consequently, the CITATION and complaint should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that on the effective date of the final ORDER in this matter, case

number 2018-3443 is dismissed.

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 is forty days after the date of that certification.

Done this day, April 15, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors