ALJDEC decisions subject to certification as final

2019A-01710-CHC-ROC · Registrar of Contractors · 2019-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2019, at 8:30 a.m. APPEARANCES: Tim Lee Adams (“Complainant”) appeared on his own behalf; Azul Verde Design Group Inc. (“Respondent”) appeared through Michael Rockwell, its Officer/Qualifying Party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on or about July 7, 1995, the Registrar issued License No. ROC 108046 for General Residential b-4 General Residential Engineering Contracting to Respondent. 2. On or about April 4, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged six items of complaint on Respondent’s performance of its contract to install pavers for a driveway, walkways, and courtyard at Complainant’s house at 9428 E. Here to There Dr., Carefree, Arizona 85377. 3. The Registrar assigned the complaint to its Investigator, Phil Jaegge, for investigation. On or about May 13, 2019, Investigator Jaegge performed a jobsite inspection. On May 23, 2019, Investigator Jaegge on behalf of the Registrar issued a directive to Respondent, requiring it to correct one of Complainant’s six items of complaint prior to June 10, 2019, at 5:00 p.m., in relevant part as follows: The respondent is to use pavers on the walkways that match the existing driveway. The respondent is to correct the condition in an appropriate manner.[1]

4. On or about June 19, 2019, Investigator Jaegge referred the complaint to the Registrar’s Legal Department. On June 20, 2019, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 5. Respondent’s qualifying party/officer Michael Rockwell filed a timely written answer to the Citation on its behalf, denying any statutory violations. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. A hearing was held on August 8, 2019. Complainant testified on his own behalf. Mr. Rockwell and his wife, Catherine Rockwell, testified on Respondent’s behalf. Investigator Jaegge also testified. Hearing evidence 8. Investigator Jaegge testified that he saw a clear boundary line between lighter and darker pavers that Respondent had laid in Complainant’s courtyard and mismatched pavers on walkways leading from the driveway. He pointed to one of his jobsite inspection photographs that showed the mismatched pavers.[2] 9. Investigator Jaegge testified that the job was fair-sized and required days to complete. Investigator Jaegge understood that the pavers that were installed later were intended to match pavers that were installed earlier on the driveway. Investigator Jaegge testified that the different colors that he saw could be different dye lots, different colors, or a mix of colors. 10. Inspector Jaegge testified that he held off issuing the directive for a week after his jobsite inspection because he expected Respondent to provide a document from Respondent’s supplier concerning the availability of pavers in the same color scheme to remedy the mismatched pavers. Investigator Jaegge testified he never received this document. 11. Respondent provided to the Registrar a letter from Ken Ward, the Commercial Sales Manager of Pioneer, the manufacturer of the pavers that Complainant had selected, that provided in relevant part as follows: Once the project was commenced, we found that there was not enough material to complete the project. Since Pioneer had sold our paver plant, we reached out to our manufacturer that is making our material per our specifications. Since the new manufacturer is producing these materials from a different source, the color was not an exact match. These pavers were subsequently removed. From this point, Pioneer searched through our retail locations looking for pavers that were made at the original plant. We found these pavers and sent them to the job site. Unfortunately, these pavers do not match perfectly either. Pioneer does not keep track of when pavers were manufactured so I have no “dye lot” to hunt down. Needless to say, there are no more of these color and size pavers available from the original plant.

One option available is to use a sealing product that will make the lighter pavers look more like the darker ones. This sealer lasts about three years, at which time the color fade should be about equal.[3]

12. Investigator Jaegge testified that after he issued the directive, he had a few calls from Respondent. When Investigator Jaegge contacted Complainant, however, Complainant stated that Respondent had not contacted him about complying with the directive and that Respondent had not performed any work. 13. Investigator Jaegge testified that he delayed referring the matter to the Registrar’s Legal Department because Respondent informed him that it was attempting to settle the dispute. Investigator Jaegge testified that he referred the matter to the Legal Department after Complainant informed him that Respondent had not resolved his complaint. 14. Respondent sent a letter to Complainant dated June 12, 2019, in relevant part as follows: We realize that we need to resolve your paving color issue. For the past two weeks I have been working with Jason with MVP and Pioneer to do just that.

However, the biggest issue we have is the fact that the driveway and walkway pavers are obsolete; meaning Pioneer does not manufacture them anymore. The new manufactured pavers do not match the drive and were removed from your site once already. The existing pavers that differ in color were collected by Pioneer from a variety of different yards/stores and they do not match even though it’s the same “blend.”

So, we would like to share with you a couple of options:

Option 1: a. Add enhancer to existing drive to bring out more darker colors. We would do a test today or tomorrow first to determine the effect, and move forward on the whole driveway if it works.

Option 2: (see sketch) Create a real transition from drive to guest parking a. Add new band to define the main driveway and create a visual separation from the guest parking. The main driveway to remain light colored. b. Adjust the configuration of the guest parking and only use the darker color pavers there

Option 3: a. Add new band to define the main driveway and create a visual separation from the guest parking. The main driveway to remain light colored. b. Remove guest parking, sidewalk and courtyard paving and add a 12”x12” concrete pavers (you pick the color) and put in the guest parking area all the way to the front door[4]

15. On or about June 17, 2019, Complainant sent a letter to the Registrar stating that he was aware of the situation with Pioneer but that the options in the June 12, 2019 letter were not acceptable because they were what Complainant wanted. Complainant stated that the only thing that would be acceptable would be for Respondent to remove all the pavers and replace them with new matching pavers to the same dimensions and layout as the existing driveway.[5] 16. Investigator Jaegge testified that Complainant had a right to receive the pavers specified in the contract, but that he did not have a right to tell Respondent how to perform the correction required by the directive. The Registrar will not tell contractors what they must do to comply with a directive to bring their work up to the Registrar’s and professional industry standards. 17. Respondent’s witnesses indicated that they understood that they needed Complainant’s permission to repair the pavers and that, to obtain permission, he also needed to permit the intended repair. 18. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website on this date. Respondent’s license is active and in good standing. No discipline has ever before been taken against the license and Complainant’s appears to be the only complaint pending against the license. Two complaints have been closed as resolved/settled. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[6] 2. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence.[7] Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[8] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[10] 4. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended as a result of their failure to comply with workmanship standards. Unfortunately, Respondent made no attempt to comply with the directive based on its erroneous misunderstanding that Complainant needed to approve its intended repair. Instead, as Investigator Jaegge testified, contractors must be permitted to attempt to correct their workmanship as they see fit. If the contractor’s attempted repair is inappropriate, a complainant’s remedy is to request a compliance inspection. 5. It is possible that the first option on Respondent’s June 12, 2019 letter would have been an appropriate repair. However, because the repair was not attempted, Investigator Jaegge could not perform a compliance inspection. 6. Investigator Jaegge’s testimony and photographs established that Respondent’s installation of the mismatched pavers furnishes cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(3),[11] namely A.A.C. R4-9-108.[12] Respondent’s admitted failure to perform any work to comply with the Registrar’s directive furnishes additional cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(22).[13] RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that on the effective date of the final order in this matter, License No. ROC 108046 of Respondent Azul Verde Design Group, Inc. shall be suspended for a period of one (1) business day. IT IS FURTHER ORDERED that Respondent shall pay the sum of $250.00 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 Order, the Respondent’s license shall be revoked, 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 five days from the date of that certification. Done this day, August 20, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Registrar’s electronic record at pdf page 110. [2] See the Registrar’s electronic file at pdf page 68, photograph 10. [3] The Registrar’s electronic file at pdf page 110. [4] The Registrar’s electronic file at pdf pages 15-16. [5] See the Registrar’s electronic file at pdf page 14. [6] See A.R.S. § 32-1154(A). [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] See A.A.C. R2-19-119(B)(2). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999). [11] 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.” [12] 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.” [13] 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