ALJDEC decisions subject to certification as final

2019A-00252-ROC · Registrar of Contractors · 2019-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2019, 1:00 P.M. APPEARANCES: Complainant Jamie A. Villasenor appeared on her own behalf; Ryan D. O’Neal, Esq., appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Saber Landscapes, Inc. (Respondent), is the holder of License Number 153907 issued by the Registrar of Contractors (Registrar). 2. On or about January 15, 2019, Jamie A. Villasenor (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with landscaping at a residence in Tucson, Arizona (“project”). 3. The Registrar performed an inspection of the project on February 15, 2019. Thereafter, the Registrar issued a Directive, dated February 15, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by March 3, 2019, as follows: Complaint Item 4: Stabilized pathway falling apart and not installed properly Complaint Item 9: General cleanup – ruined recently painted stucco. Painted 1/2018. Complaint Item 11: Pavers stained & not cleaned properly. (level paver that’s sticking up, replace stained pavers) Complaint Item 12: Open end of conduit not sealed & shallow buried. (Terminate at box and strap to structure). 4. After the Registrar was informed by Complainant on March 5, 2019, that no corrective work had been performed, the Registrar then issued a Citation to Respondent, dated March 7, 2019, 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)(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 May 14, 2019, at 1:00 P.M. 6. At the May 14, 2019, hearing, Complainant Jamie A. Villasenor testified on her own behalf. Respondent presented the testimony of Scott Sawyer, Qualifying Party of Respondent. Mike Springer, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 12 and Respondent’s exhibit numbers 1 - 10.[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 he performed a pre-hearing inspection on May 13, 2019, and observed that all of the Directive items were completed with the exception of Complaint Item Number 4 regarding the stabilized walkway. He stated that he could not rule out that dogs may have caused the degradation in the stabilized walkway. 8. Complainant Jamie Villasenor testified that she agreed with the Investigator that Complaint Item Nos. 9 and 12 were corrected, but disagreed with him that Complaint Item No. 11 was corrected. With respect to Complaint Item Number 4, the contract between the parties provided for a 600 square foot stabilized pathway. (Complainant’s Exhibit 1). She offered photographs taken after corrective work was undertaken which showed patching of the walkway and loose gravel over the walkway. (Complainant’s Exhibit 4). She stated that Respondent agreed during the initial inspection to correct other items contained in her Complaint but has failed to do so. She stated further that she has filed another Complaint against Respondent. 9. Scott Sawyer, Qualifying Party of Respondent, testified on behalf of Respondent that the job was completed before Thanksgiving and Respondent had returned almost 20 times for minor issues. With respect to the walkway, he testified that he believed Complainant’s dogs were allowed to access the walkway too soon after the work was performed. He stated he recommended that the walkway be allowed to cure for two days, but stated that the specifications for the product only recommended a cure time of two hours. In any event, he testified that Respondent returned and corrected areas of the walkway. 10. With respect to Complaint Item No. 11, Mr. Sawyer stated that sections of pavers were pulled and replaced with new pavers. (Respondent’s Exhibit 3, 6). 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. …

22. Failure to take appropriate corrective action to comply with his 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.….

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. 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) regarding Complaint Item Number 4. Complainant presented photographs depicting unsightly patch-like repairs of the stabilized walkway containing loose gravel. (Complainant’s Exhibit 4, Respondent’s Exhibit 2). While Respondent claimed that the repairs were necessitated because of the activity of Complainant’s dogs, there was insufficient evidence presented in that regard and the photographs presented by Respondent were not persuasive of that contention. (Respondent’s Exhibit 1). As to Complaint Item Number 11, Complainant presented no evidence that that item was not corrected. 7. 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. In that Respondent failed to correct Complaint Item No. 4 satisfactorily, it thus did not fully complete the Directive. There was no evidence presented of a valid justification for not doing so. 8. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) (relating to Complaint Item Number 4) 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, Saber Landscapes, Inc.’s, License Number 153907 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 $100.00 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, June 10, 2019.

/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 submissions to the Arizona Office of Administrative Hearings.

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