ALJDEC decisions subject to certification as final

2019A-00623-CHC-ROC · Registrar of Contractors · 2019-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2019 APPEARANCES: Terri Grazor (“Complaint”) appeared, telephonically, on her own behalf. Grant Griffiths (“Mr. Griffiths”) appeared, telephonically on behalf of New Life Landscapes Inc. (“Respondent”). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. On April 17, 2003, the Arizona Registrar of Contractors (“ROC”) issued License No. 184677 for Specialty Dual CR-21 Hardscaping and Irrigation Systems to Respondent. Respondent’s address of record for the license is 8815 East Spurr Lane, Prescott Valley, AZ 86315- 4168. Grant Laurance Griffiths is listed on the license as Officer, Qualifying Party.[1] 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 184677, as reflected on the ROC’s public website on July 29, 2019. Such prior License record reflects that Respondent’s license is currently active. The license has not been previously disciplined by the ROC. The record also reflects that there is one open complaint against Respondent’s license, presumed to be related to this matter. Respondent has an active $6,750.00 surety bond issued through Merchant’s Bonding Company effective February 14, 2013.[2] 3. On September 20, 2018, Complainant entered into a contract agreement whereby Respondent agreed to install pavers on Complainant’s residential property located at 174 Barcelona Way, Prescott, AZ 86303 for the sum total of $8,915.00. The project commenced on October 1, 2018 and was completed October 25, 2018. 4. On February 6, 2019, the ROC received a Complaint against Respondent from Complainant alleging poor workmanship. ROC Investigator David Oen (“Investigator Oen”) was subsequently assigned to the case. 5. The Complaint indicated a number of items that were done incorrectly by Respondent, including but not limited to, incorrect installation of NextGel, failure of compound joints, sinking pavers, and presence of film and stain on the pavers. 6. On or about April 12, 2019, Investigator Oen inspected the work that had been done on the project to date, with Complainant and Mr. Griffiths present. 7. On or about April 12, 2019, Investigator Oen issued a Directive From Registrar (Directive) to Respondent because he substantiated four of Complainant’s allegations that Respondent’s work failed to meet minimum ROC workmanship standards. The directive to Respondent provided the following: “After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9- 108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on April 12, 2019. You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: NextGel was used as the jointing sand and there is a issue with his installation process and according to the mfg. installation process Grant did not follow the direction. The NextGel is breaking down and sand is coming out of the joints. the compound joints are failing.

Contractor is to remedy this violation by appropriate means.

Complaint Item 2: Pavers are sinking.

Contractor is to remedy this violation by appropriate means.

Complaint Item 4: Grant attempted to power wash the pavers to remove the sand in between the pavers and this has created joint sanding to wash away & the underground is compromised and washing away.

Contractor is to remedy this violation by appropriate means.

Complaint Item 9: The joint sand that was used is putting a film/stain like material on the pavers and the power washing has not remove the film.

Contractor is to remedy this violation by appropriate means.” All errors in original.

8. Following the issuance of the written Directive, Respondent attempted to resolve the violations. 9. On April 30, 2019, the ROC issued a Citation against Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). 10. Respondent filed its Written Answer to Citation with the ROC on May 22, 2019. 11. On May 24, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 29, 2019. Hearing Evidence 12. The parties acknowledged that there were violations that needed to be addressed prior to the Directive deadline.[3] Investigator Oen testified that Respondent attempted to comply with the Directive, however, Complainant and Respondent could not agree on the manner in which the issues should be addressed. Investigator Oen stated that there was no arrangement established to take corrective action thus, a Citation was issued by ROC. 13. Complainant introduced Tom Petro (Mr. Petro) as a witness. Mr. Petro testified that he heard Complainant complain that Respondent used the wrong product and did not read the directions. Mr. Petro stated that he observed visible marks on the surface from power washing, gaps in the cracks, white filmy substance on the pavers, and uneven pavers. Mr. Petro stated that after power washing, he also saw holes in the pavers which made the pavers look old. Mr. Petro stated that he was not an expert in pavers. 14. Complainant testified on her own behalf. Complainant stated that joint sand was a problem. Complainant testified that Respondent failed to read the instructions regarding the products and power washing. She stated that due to the unevenness of the pavers, there was water retention, in the backyard, following a monsoon rain. Additionally, Complainant stated that there were streaks in the pavers after Respondent power washed the pavers. Complainant lastly testified that there was no joint sand. 15. Mr. Griffiths testified on behalf of Respondent. Mr. Griffiths acknowledged that when he first saw the pavers, the pavers looked bad. He stated that he used joint sand because Complainant did not want silica sand installed. Mr. Griffiths stated that Complainant did not want silica sand installed because she did not want residual sand on her new flooring inside her home. 16. Mr. Griffiths stated that, as a result, he and Complainant agreed that Respondent would apply NextGel and sweep the excess from the pavers. Additionally, Mr. Griffiths testified that Complainant did not want him to use a plate compactor so as to not scratch the pavers. Mr. Griffiths stated that he pressure washed the pavers to remove excess film left from the NextGel. 17. Mr. Griffiths testified that after he saw the streaks and film on the pavers, he fixed the pavers. He stated that after he fixed the pavers, Investigator Oen put a level on the pavers and found that the pavers were level. Mr. Griffiths stated that he offered to power wash the pavers and put silica sand in the joints, however, Complainant did not let Respondent address either of these issues. CONCLUSIONS OF LAW 1. This matter lies within the ROC’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). 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.R.S. § 32-1154(A)(3), namely A.A.C R4-9-108.[4] 4. However, the evidence established that Respondent attempted to complete the corrective work following the Directive being issued but was not allowed to correct it, per his expertise, by Complainant. Respondent established by a preponderance of the evidence that Complainant denied it access to the property sufficient to allow Respondent to complete the required repairs. Complainant told Respondent that she did not want him to power wash or put any additional sand in the joints. Such a limitation constituted a denial of access. Denial of access constitutes a valid justification for failing to comply with a written directive of the ROC. Therefore, Complainant failed to establish a violation of A.R.S §32-1154(A)(22). [5] 5. Because the ROC does not expect nor demand perfection from the licensees, Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(3) unless it is given the opportunity to correct said issue. RECOMMENDED ORDER It is recommended that on the effective date of the ROC’s final order in this matter, ROC close as dismissed Complainant Terri Grazor’s complaint in Case No. 2019-00623 against Respondent New Life Landscapes, Inc., ROC license 184677. 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, August 13, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACZLbEAP. [2] Id. [3] A.R.S. § 32-1154(A)(22) includes, among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following: 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. Emphasis added. [4] 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.” [5] 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.”

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