ALJDEC decisions subject to certification as final

2018A-3882-ROC · Registrar of Contractors · 2019-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2019 APPEARANCES: Complainant Edward Andrew Serafin appeared on his own behalf. Tracy Tingue, Owner and Operator, appeared on behalf of Respondent AZ Turf & More LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT AZ Turf & More LLC (Respondent) is the holder of License No. 314645 issued by the Arizona Registrar of Contractors (Registrar). On or about November 10, 2017, Edward Andrew Serafin (Complainant) entered into an informal contract with Respondent for the installation of artificial turf at his residence. On or about August 20, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. Specifically, Complainant raised an issue with the appearance of a depression in the artificial turf installed at his residence. The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that provided as follows: You are hereby directed to remedy the following violations by the appropriate means: Complaint item #1: Correct locations of sinking soil under the installed turf.

Following the issuance of the written directive, Respondent made no attempt to perform any corrective work. After the deadline in the directive expired, Investigator Grimm was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22). Investigator Grimm testified that he understood the depression at issue in the artificial turf was in the same location as a large tree that had been removed. Investigator Grimm indicated that the depression was approximately one inch deep and up to four feet in diameter. Investigator Grimm stated that the Registrar’s standards provide that a contractor accepts the surface once the contractor commenced work on the project, so Respondent was responsible for the depression in the artificial turf. Investigator Grimm acknowledged that if Respondent had installed sod at the same location, the depression would not be a violation of any of the Registrar’s standards. Investigator Grimm testified that the Registrar had not adopted specific workmanship standards applicable to artificial turf. Complainant testified that he informed Respondent of the tree that had recently been removed in the area where the artificial turf was going to be installed and was assured it would not be an issue. Complainant acknowledged the area was level when the project was completed, but that after the first major rain, the area where the tree had been removed developed an obvious depression. Complainant stated that his landscaper had developed a plan to deal with the depression and he offered to split the cost of the repair with Respondent, but the offer was refused. Complainant acknowledged the project as completed by Respondent cost $4,500.00 and his proposed resolution was $5,700.00. Tracy Tingue, Respondent’s Owner and Operator, testified that prior to installing the artificial turf, the soil was properly compacted. Mr. Tingue also stated that Respondent had completed a repair of the area after Complainant’s initial complaint regarding the depression. Mr. Tingue proposed that the tree was not properly removed and the root system was still decomposing, and that as it decomposed, the soil around it would continue to settle. Mr. Tingue asserted that Respondent was not unwilling to correct the issue, but was unaware of how to correct the issue so long as the roots were still decomposing. Mr. Tingue argued that Respondent should not be held to a higher standard because it installed artificial turf rather than sod. Administrative notice is taken of Respondent’s prior License record on February 6, 2019. Such prior License record reflects that Respondent’s License No. 314645 was first issued on July 25, 2017, and is current. Such prior License record also reflects that there was one open complaint, one prior complaint resolved/settled/withdrawn, and one prior complaint resulting in discipline against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard. A.A.C. R2-19- 119(B)(2). 3. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).[1] 4. The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 314645 for a period of three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 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 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 40 days from the date of that certification. Done this day, February 11, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] 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.”

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

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