FINACT2019A-00697-CHC-ROC.pdf

2019A-00697-CHC-ROC · Registrar of Contractors · 2020-01-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

William Thomas Anderson, Case No. 2019-00697 COMPLAINANT, Docket No. 2019A-00697-CHC-ROC v. FINAL ADMINISTRATIVE Falcon Landscapes Pavers & Masonry LLC, DECISION AND ORDER License No. ROC 315479, 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 of each finding of fact or conclusion of law. 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 accepts it. CONCLUSION AND ORDER 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 February 9, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. – Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602) 542-1525 Toll Free (877) 692-9762 Lg131 8/19 FINAL NOTE On page one, paragraph two, “Joseph Lynch” should be “William Thomas Anderson.” On page two, paragraph three, “May 23” should be “May 20.” On page six, paragraph three, “(A)(5)” should be “(A)(7).” On page six, paragraph four, add “that 30 days after the effective date of the final Order,” between “It is further recommended” and “Respondent’s License.” Dated December 31, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class Mail December 31, 2019 to: Respondent Falcon Landscapes Pavers & Masonry LLC PO Box 50481 Mesa, AZ 85208 Complainant William Thomas Anderson 919 E Windsor Dr Gilbert, AZ 85296 Copy sent electronically this same date to: Office of Administrative Hearings Tammy L. Eigenheer, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-00697 / KR

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. – Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602) 542-1525 Toll Free (877) 692-9762 Lg131 8/19 RECEIVED 12.2.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Thomas Anderson, No. 2019A-00697-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Falcon Landscapes Pavers & Masonry DECISION LLC, ROC License: ROC 315479, RESPONDENT

HEARING: November 7, 2019 APPEARANCES: Complainant William Thomas Anderson appeared on his own behalf. Joseph Lynch, Owner and Qualifying Party, appeared on behalf of Respondent Falcon Landscapes Pavers & Masonry LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. Falcon Landscapes Pavers & Masonry LLC (Respondent) is the holder of License No. 315479 issued by the Arizona Registrar of Contractors (Registrar). 2. On or about April 16, 2018, Respondent emailed a copy of a contract to Joseph Lynch (Complainant) for a landscaping project. The emailed copy of the contract did not include an estimated date of completion or an advisement that a homeowner may file a complaint with the Registrar. No copy of the contract was signed by the parties. 3. On or about February 11, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. On or about March 14, 2019, Complainant submitted additional information regarding the complaint. 4. The Registrar assigned the complaint to Investigator Randy Morris. On May 3, 2019, after a jobsite inspection, Investigator Morris issued a written directive to Respondent that provided as follows: 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

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.2.2019 ROC LEGAL

the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 23, 2019.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: “Poor workmanship travertine pavers loose and uneven” (NOTE: The Complainant is referring to excessive lippage and uneven grout spacing) Investigator’s Observation: Verified excessive lippage at tiles around the pool and within the patio area. Verified that grout lines are unevenly spaced throughout the tiles around the pool and patio area. The allegation is substantiated. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4- 9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item 2: “hosing down travertine or rain water runs to the pool” (NOTE: The Complainant is referring to the slope of the deck around the pool has negative drainage, causing water to drain into the pool and not away from the pool) Investigator’s Observations: Performed a water test of the pool deck and patio, observed water collecting along the pool deck adjacent to the pool with water draining into the pool. The allegation is substantiated. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4- 9-108, Poor work not performed in accordance with professional industry standards.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

5. After issuing the written directive, Investigator Morris received additional information from the parties. On June 13, 2019, he issued an amended written directive that provided, in pertinent part, as follows with respect to Complaint Item 2: Complaint Item #2 Directive has been amended due to evidence showing that the Complainant was informed prior to the installation of the tile that the removal of the required 6-8” border between the tile and the bond beam/coping had the potential to cause water to drain into the pool. This directive item has been removed from the directive and is no longer part of the directive. Text messages between the Complaint and the Respondent are included. . . .

6. The deadline on the amended directive was June 28, 2019.

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7. Following the issuance of the written directives, Respondent repaired some of the issues with the excessive lippage and grout lines. After the deadline in the directive expired, Investigator Morris was notified of the corrective work that had been attempted. 8. Investigator Morris performed a compliance jobsite inspection on July 9, 2019. At that time, Investigator Morris observed areas of excessive lippage and that the grout line around the pool coping were still uneven. 9. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22). 10. Investigator Morris testified that based on the information he received, Complainant had been notified of the potential drainage issues prior to the project starting and wanted to proceed with the project as planned. 11. Brenda Anderson testified that she had seen an example of a pool edge that Respondent had done and wanted her project to be similar is style. Ms. Anderson noted she knew, because her pool had a raised rolled edge and the example photo had a level surface, that the complete look would not be possible. However, Ms. Anderson stated she was not asking for a finish that looked exactly like the example photo, but wanted the stones against the pool edge to be closely coped to have a nicer appearance. Ms. Anderson was disappointed in the results. Ms. Anderson stated that based on their budget, they were not prepared to renovate the pool at the time of the project with Respondent, but considered implementing Respondent’s suggestions at a later date. 12. Respondent presented the testimony of Bill Wilson, licensed contractor, as an expert to testify as to his observations of the project. Mr. Wilson noted that he was focused on examining the field of tiles and did not closely inspect the pool edge. When presented with photographs of the project, Mr. Wilson stated that the edge tiles could have been cut more smoothly. 13. Mr. Lynch testified that he had a verbal discussion with Complainant prior to the work commencing regarding the pool edge at issue. Mr. Lynch stated that he recommended the rolled edge be cut off and built up so the travertine could be cut up against the new edge and drainage would not be an issue. As evidence of this discussion, Mr. Lynch submitted to Investigator Morris a text message exchange he had with RECEIVED 12.2.2019 ROC LEGAL

Complainant after the written directive had been issued in which the following messages were sent: [Mr. Lynch:] The first day I came out to measure, we planned on leaving a space from the pool. You said your wife wanted the travertine to go all the way to the bond beam. I asked you if you wanted to demo the bond beam and redo the pool coping, (which would then look like the clean look that we originally spoke about. Please let me know if you would like for me to come out this afternoon and make those adjustments? [Complainant:] We never want[ed] a gap there.

Mr. Lynch did not provide any documentation establishing the nature of such a discussion occurring at the time of the contract or prior to work on the project beginning. Mr. Lynch testified that Respondent “took out tons of dirt” during the project and had to lower the soil to put in the travertine and turf. Mr. Lynch was unable to explain why, if Respondent took out dirt prior to installation, Respondent failed to slope the travertine tiles away from the pool to prevent the water draining into the pool. 14. While Respondent recommended remodeling the pool to provide the appearance of the example photo, Complainant’s decision not to pursue that recommendation at the time of the contract did not mean that Complainant’s agreed to have a gap between the existing pool edge and the tile or to have water drain into the pool. 15. Administrative notice is taken of Respondent’s prior License record on November 27, 2019. Such prior License record reflects that Respondent’s License No. 315479 was first issued on September 8, 2017, and is active. Such prior License record also reflects that there were no other open or prior complaints 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

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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 contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A).1 Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).2 4. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The travertine tiles edging the pool were not cut evenly or smoothly. Further, the slope of the tiles should have prevented water from flowing back into the pool. 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. R4-9-108.3 5. The evidence established that Respondent did not 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).4

A.R.S. § 32-1158 provides as follows: A. 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 in writing at least the following information: .... 4. The estimated date of completion of all work to be performed under the contract. .... 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. This paragraph does not apply to a person who is subject to and complies with section 12-1365. A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” 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.” 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)(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.” RECEIVED 12.2.2019 ROC LEGAL

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. 315479 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. It is further recommended Respondent’s License No. 315479 shall be suspended based on its violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A) until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(A). 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, November 27, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors