FINACT2019A-01515-CHC-ROC-FinalAgencyAction-6650.pdf

2019A-01515-CHC-ROC · Registrar of Contractors · 2019-11-26

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Isabel Jacki Manning, Case No. 2019-01515 COMPLAINANT, Docket No. 2019A-01515-CHC-ROC v. Green Canyon Landscaping Inc FINAL ADMINISTRATIVE License No. ROC 321468, DECISION 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 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 January 5, 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:

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 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE

On page 1, line 13 replace “Carman Renteria” with “Carmen Renteria.” One page

one, line 14 replace “Rubin Perez” with “Ruben Perez.” On page 1, line 21 replace “September 24, 2108” with “September 24, 2018.” On page 8, line 18 replace “May 5, 2019” with “May 10, 2019.” On page 9, line 5 replace “A.R.S. § 32-1101(A)(5)” with “A.R.S. § 32-1101(A)(7).”

Dated November 26, 2019.

By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail November 26, 2019 to: Respondent Green Canyon Landscaping Inc PO Box 5021 Peoria, AZ 85385 Complainant Isabel Jacki Manning 4033 W 14th St Yuma, AZ 85364 Copy sent electronically this same date to: Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-01515 / SA

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 11.12.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Isabel Jacki Manning, No. 2019A-01515-CHC-ROC

COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v.

Green Canyon Landscaping Inc., ROC License: ROC 321468,

RESPONDENT

HEARING: October 24, 2019 APPEARANCES: Isabel Jacki Manning, Complainant, Melinda Davanzo, Complainant witness, Carman Renteria, Respondent and Qualifying Party, Tolentino Renteria, Respondent Witness, Rubin Perez, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent, Green Canyon Landscaping Inc., (hereinafter “GCL”) is the holder of License Number ROC 321468 issued by the Arizona Registrar of Contractors (the “ROC”).1 2. On or about September 24, 2108, Complainant Isabel Jacki Manning engaged GCL to, among other things, install 1,465 Square Feet of Pavers; provide Irrigation Front & Back, install five Tons of Gravel; install ten sprinklers and install 60 Linear Feet of Decorative Block and install Plants.2 As work proceeded, changes were

Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. The scope of the work for this job is based upon an Invoice given to the Complainant by GCL. Per testimony of both Complainant and the Qualifying Party of GCL at the evidentiary hearing in this matter, there is no written contract. See the Invoice at Agency Record, page 62 along with payment receipts at Agency Record, pages 63-72. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.12.2019 ROC LEGAL

added (orally, without a written change order) to install artificial grass in the front yard as well as re-tile the in-ground pool.3 3. On or about March 27, 2019, Isabel Jacki Manning (“Complainant”) filed a

written complaint with the Arizona Registrar of Contractors, alleging performed poor

below industry standard work.4

4. The Registrar assigned the complaint to Investigator Ruben Perez. After

notice to the parties, Mr. Perez conducted a Job Site Inspection (“JSI”) on April 17,

2019. The Complainant and two of Complainant’s friends, Kathy Major and Ramon

Silva were present for the JSI. For the Respondent, Tolentino Renteria and

respondent’s employee, Gerardo Felix, were present at the JSI. Investigator Perez’

findings and observation were contemporaneously recorded in his Jobsite Inspection

Notes.5 Inspector Perez reported:

Complainant alleges that Respondent performed poor work on the below listed items. Complainant also claims respondent did not do a written contract for the landscaping job nor for the change orders. Complainant also reports respondent re-plastered swimming pool while not being properly licensed for it and did not provide a written contract for that job either. Respondent only has a CR-21; hardscaping and irrigation systems license. ROC # 321468…Respondent confirmed he did not do a written contract for this job. He also confirmed he did not do any written change orders even though, there were several changes. He provided part of the invoice as the contract and handwritten notes as change orders… Several places around pool were observed with excessive openings/gaps between pavers and uneven pavers (See pictures 13-28).6 Per Complainant’s “Attachment to Disclosure Statement,” Page 1. The Complaint is an attachment to the Citation in this case. The Complaint appears at Agency Record, Pages 87 and 88. Agency Record, pages 25-27. The referenced photographs were not provided in the Agency Record nor introduced into the record, However, Complainant’s Exhibits 2 through 10 of Complainant’s Disclosure Statement are confirmed as fairly and accurately depicting the condition of the site on the date of the JSI and are described as follows: EX2 Photos of pavers - incorrectly installed EX3 Planters are loose - they used tile-set, not cement EX4 Pool Gate not secure - loose EX5 Plants dying - dirt is like cement and the walls too hot EX6 Supposed to be a water flow indentation - not done correctly EX7 Rocks discolored because of water EX8 Lawn needs to be stretched EX9 Too much space between pillars/pavers & house EXlO inferior irrigation tubing - broke down immediately RECEIVED 11.12.2019 ROC LEGAL

Several places around pool were observed with excessive openings/gaps between pavers and uneven pavers… Several locations around pool were observed with gaps between pavers without fill-in sand… Respondent admitted he contracted with complainant to re-plaster pool while he did not have a contractor’s license for pool re-plaster (out of scope). He also said there was no written contract... Respondent admitted he contracted with complainant to re-plaster pool while he did not have a contractor’s license for pool re-plaster (out of scope). He also said there was no written contract for pool re-plaster. Excessive streaks (discolorations) were observe throughout pool plaster for pool re-plaster. Excessive streaks (discolorations) were observe (sic) throughout pool plaster… Second irrigation valve was not capped to prevent flooding (added by complainant at JSI)…Second valve was observed still connected to irrigation system. Responded (sic) confirmed it was not operational and he would cap it to prevent flooding… Electric cables were left above ground posing a dangerous situation (added by complainant at JSI)…Low voltage cables (capped) were observed above ground, over rock in the front yard.

5. After the jobsite inspection, Investigator Perez issued a Written Directive and Corrective Order on April 24, 2019 to GCL as follows: You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 3: Several places around pool were observed with excessive openings/gaps between pavers and uneven pavers.

Complaint Item 5: Several locations around pool were observed with gaps between pavers without fill-in sand

Complaint Item 7: Excessive streaks (discolorations) were observe throughout pool plaster.

Complaint Item 11: Second irrigation valve was not capped to prevent accidental flooding (added by complainant at JSI). Second valve was observed still connected to irrigation system. Respondent confirmed it was not operational and he would cap it to prevent flooding.

Complaint Item 12: Mexican bird of paradise plant was moved from one location to another and plant is now dead (added by complainant at JSI). Plant was observed dead. Respondent RECEIVED 11.12.2019 ROC LEGAL

confirmed he moved it from front yard near front door to side yard at the request of complainant Complaint Item 13: Low voltage cables (capped) were observed above ground, over rock in the front yard

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. The Written Directed specified that GCL shall remedy the stated violations by the appropriate means on or before 5:00 pm, May 10, 2019. 6. On July 5, 2019, after written notice to the parties, Inspector Perez conducted a Compliance Inspection at the Complainant’s residence... Inspector Perez recorded his findings in his Compliance Inspection notes7 wherein he stated: A compliance job site inspection was performed with complainant, Isable Jacki Manning present. Respondent, Green Canyon Landscaping was not present. Complainant alleges that Respondent performed some repairs as per the directive issued however, some fail to meet minimum workmanship standards. Complainant said he is satisfied with all items corrected except complaint items 3, 5 and 7.

Compliance Findings: Complaint Item 3: Several places around pool were observed with excessive openings/gaps between pavers. Complaint Item 5: Several locations around pool were observed with gaps between pavers without fill-in sand. Complaint Item 7: Excessive streaks (discolorations) were still observed throughout pool plaster. Complaint Item 11: Second irrigation valve was not capped to prevent accidental flooding (added by complainant at JSI). Complainant said this item was repaired and he is satisfied with corrections. Complaint Item 12: Mexican bird of paradise plant was moved from one location to another and plant is now dead (added by complainant 7 Agency Record, Compliance Inspection Notes, pages 12-14. RECEIVED 11.12.2019 ROC LEGAL

at JSI). Complainant said this item was repaired and he is satisfied with corrections. Complaint Item 13: Electric cables were left above ground posing a dangerous situation (added by complainant at JSI). Cables were not visible any longer. Item was corrected. 7. Following the issuance of the written directive, GCI had not corrected item 3, 5 or 7 listed in the Written Directive on or before the May 10, 2019 date of compliance. 8. On August 8, 2019, the ROC issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3) - R4-9-1088 and A.R.S. § 32- 1154(A)(22)9 9. An evidentiary hearing was held before the Office of Administrative Hearings, a state agency independent of the ROC on October 24, 2019... 10. Investigator Perez testified consistently with his Jobsite Inspection Notes he was able to substantiate six out of the 13 items raised in the Complaint. He testified that the six of the items he observed at the JSI were those items that he listed in the Written Directive. He stated that each of the six items listed in the Written Directive constituted GCI’s failure to provide workmanship at or above industry standards. Further, Inspector Perez testified consistently with the his Compliance Inspection Notes that with respect to three of the six items in the Written Directive there had been compliance. However, he testified that for three of the six items, specifically items 3, 5 and 7 of the Directive, there was not compliance on or before the May 10, 2019 compliance deadline. Moreover, the items 3, 5 and 7 of the Directive were still not in compliance as of the Compliance Inspection on July 5, 2019.

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. 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 11.12.2019 ROC LEGAL

Mr. Perez noted that although GCI bid and attempted to perform tile and plaster work on Complainant’s pool – conduct which is outside of the scope of GCI’s license classification – the work on the pool was below standard workmanship because

inasmuch as the plastering was not consistent in color and displayed visible streaking.

Notwithstanding undertaking work on the pool that was outside of GCI’s license

classification which, not unexpectantly resulted in poor workmanship and a poor result,

it is clear that Complainant directed GCI not to attempt any repairs of the pool by GCI

itself or through a licensed sub-contractor until summer had ended weather was cooler.

Mr. Perez understood that access to conduct repairs on the pool tile and plastering was

denied GCI after the Compliance date of the Written Directive. He understood that only

after the Compliance date of May 10, 2019, Complainant directed there be no work on

the pool repair until October of 2019. Inspector Perez was aware of no facts showing

Complainant denied GCI access during the time period between the date of the Written

Directive and the date of compliance.

11. Complainant testified that the initial agreement was for Complainant to

pay $8,010.00 for GCI’s work. By the time the Complaint was filed, Complainant stated

that the total actually paid to GCI was $32,500.00. The increase was stated to result from the pool plaster work – which was never repaired. Complainant testified that she was aware that GCI was a licensed Arizona ROC contractor, but was unaware that GCI was not legally authorized to perform her pool tile and plastering work. GCI never informed her that the plastering and tile work was outside the scope of their license. She said there are problems that remained unattended to by GCI after the compliance date of the Written Directive. About 20 pavers are loose and some have come off. She said GCI advised her that they did not want to sub-contract the pool repairs until after the hearing [before the Office of Administrative Hearings]. So, she testified that she contracted with another ROC license contractor to perform the pool plaster and tile repairs rather than suffer further delay. She stated that during the time between the date of the Written Directive and the date of compliance, access to the job site was open and available to GCI. RECEIVED 11.12.2019 ROC LEGAL

12. GCI presented no witnesses and rested without offering testimony or exhibits. On final argument, GCI argued that all of the items on the Directive were completed prior to the May 10, 2019 compliance deadline. There is no evidence of

record to support this contention.

13. Administrative notice is taken of Respondent’s prior License record as

reflected on the Registrar’s public website on November 11, 2019. Such prior License

record reflects that Respondent’s License Number ROC 321468 was first issued on

August 13, 2018. There are no ROC disciplinary actions reflected on this license.

There are, including this matter, two pending Complaints against GCI’s license.

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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 violation 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. 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."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B). 5. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See RECEIVED 11.12.2019 ROC LEGAL

Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). There is no evidence that the Respondent is “…unscrupulous, unqualified, and financially irresponsible.”

6. Although not argued by GCI, testimony raised the question whether GCI

was denied access to timely comply with the Written Directive. By a preponderance of

the evidence, it is apparent that no effort or conduct of the Complainant or anyone else

prevented GCI access to the job site during the period between the date of the

issuance of the Written Directive and the Compliance date deadline. The defense of

no access is not supported by the evidence.

7. By a preponderance of the evidence, GCI failed to perform all the paver

installation work on this project in a professional and workmanlike manner and in

accordance with applicable professional industry standards. Complainant, by a

preponderance of the evidence, did establish that Respondent did not perform the work

in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby

in violation of A.R.S. § 32-1154(A)(3).

8. Complainant established, by a preponderance of the evidence, that GCI

failed to comply with three specified repair directives contained in the Written Directive on or before the Compliance Deadline on of May 5, 2019. Complainant has therefore, by a preponderance of the evidence, proven GCI violated A.R.S. § 32-1154(A)(22). 9. The registrar may, pursuant to A.R.S. §32-1154(E), impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A.R.S. § 32- 1154(A)(22). RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Green Canyon Landscaping Inc., ROC License: ROC 321468 for one (1) day. FURTHER IT IS RECOMMENDED that a civil penalty of $500.00 be imposed in accordance with A.R.S. §32-1154(E) RECEIVED 11.12.2019 ROC LEGAL

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 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 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, November 11, 2019. Randolph D. Wolfson Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors