FINACT2019A-02538-CHC-ROC.pdf

2019A-02538-CHC-ROC · Registrar of Contractors · 2020-01-21

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Grace M Gabaldon, Case No. 2019-02538 COMPLAINANT, Docket No. 2019A-02538-CHC-ROC

v. FINAL ADMINISTRATIVE DECISION AND ORDER Wright Brothers Landscaping and Removal LLC, License No. ROC 240842, 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. MODIFICATION AND WRITTEN JUSTIFICATION 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 modifies it. The administrative law judge found that the Respondent was directed to correct three complaint items by appropriate means: items 5, 6, and 7. ALJ Dec. 1:28 – 2:21. The administrative law judge further found that the Investigator noted that the corrective work had not been completed by the directive deadline. ALJ Dec. 3:4-8. While the administrative law judge noted that the Respondent was cited for violations of A.R.S. § 32-1154(A)(3), the administrative law judge failed to explicitly determine whether the Respondent violated A.R.S. § 32-1154(A)(3). See ALJ Dec. 3:35 – 4:4; but see ALJ Dec. 8:19-29. Instead, the

of 3 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 recommended decision only addresses the Respondent’s ability to “remedy this violation.” Id. The Registrar must modify the decision, because the Administrative Law Judge found facts for a violation of A.R.S. § 32-1154(A)(3), but only addressed issues regarding A.R.S. § 32- 1154(A)(22) in its conclusions. Additionally, the administrative law judge concluded that the record established that Respondent was in violation of only A.R.S. § 32-1154(A)(2), (12), and (16), but did not find a violation of A.R.S § 32-1154(A)(22). ALJ Dec. 9:11-25. The Administrative Law Judge Decision recommends that Respondent be ordered to pay a civil penalty of $200.00 to the Registrar pursuant to A.R.S. § 32-1154(E). ALJ Dec. 10:6-9. Under A.R.S. § 32-1154(E), a civil penalty may be imposed “for each violation of subsection A, paragraph 22 of this section.” Because the record did not establish that Respondent was in violation of A.R.S. § 32-1154(A)(22), a civil penalty cannot be imposed in accordance with A.R.S. § 32-1154(E). CONCLUSION AND ORDER The Registrar modifies the Administrative Law Judge’s Decision by the following: On page 8, line 19, inserting after “A.R.S. § 32-1154(A)(3),” the following: “Having proven violations of A.R.S. § 32-1154(A)(3), namely R4-9-108, by a preponderance of the evidence, the only issue is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Directive to remedy the poor workmanship by appropriate means.” On page 10, striking lines 6 through 15. The Registrar accepts the remainder of the Administrative Law Judge’s Decision, which becomes effective on February 25, 2020. FINAL NOTE On page two, paragraph four, line 30, add “, namely A.R.S. § 32-1158(A),” between “A.R.S. § 32-1154(A)(12)” and “with regard to the written contract.” On page three, paragraph seven, line 15, replace “‘complaint’” with “compliant.” Dated January 16, 2020.

of 3 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 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 January 16, 2020 to: Respondent Wright Brothers Landscaping and Removal LLC PO Box 3148 Prescott, AZ 86302 Complainant Grace M Gabaldon 3490 N Tower Rd Prescott Valley, AZ 86314 Copy sent electronically this same date to: Office of Administrative Hearings Kay Abramsohn, Administrative Law Judge Respondent at email address on record with the Registrar Case No. 2019-02538 / KR

of 3 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 12.19.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Grace M. Gabaldon, No. 2019A-02538-CHC-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE v. Wright Brothers Landscaping and Removal DECISION L.L.C., ROC License: ROC 240842, RESPONDENT.

HEARING: October 24, 2019, telephonically.1 APPEARANCES: Complainant Grace M. Gabaldon represented herself. Owner Hamilton Wright represented Respondent Wright Brothers Landscaping and Removal, LLC. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE

1. Wright Brothers Landscaping and Removal, LLC. (Respondent) is the

holder of License Number 240842 issued by the Registrar of Contractors (Registrar).

2. On or about May 15, 2019, Complainant filed a Licensed Complaint Form (Complaint) with the Registrar against Respondent alleging poor work in connection with a “remodel” of her back yard, that included debris removal, grading, weed fabric, new ½ inch rock at a depth of two inches, herbicide application, existing flagstone to be taken up and stacked in one place, and 197 linear feet of block wall footing with six-foot tall block wall at Complainant’s home in Prescott Valley, Arizona (“Project”). The June 18, 2018 “Estimate – Contract” reflects a total contract price of $23,494.53. 3. The Registrar’s Investigator (Investigator) performed an inspection of the Project on or about June 24, 2019. Thereafter, the Investigator issued a “Directive,” dated

The hearing was conducted telephonically through the Registrar’s Flagstaff, Arizona office.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.19.2019 ROC LEGAL

July 9, 2019, requiring Respondent to correct three Complaint items, based on specific determined deficiencies at the Project, and to do so by July 27, 2019 as follows: 1. Complaint Item 5. Block wall was to be 6ft, it is not, it is only 4’ in various places. The respondent contracted this item outside the scope of his CR-21 Hardscaping license as this is a perimeter fence. It was contracted to be 6’ high and several sections are well below that. The CR-21 is specifically excluded from installing perimeter fencing and this is a violation of ARS 32- 1154.A.16 (warning letter sent).

Additionally, the respondent failed to ensure a building permit was in place prior to this portion of the contracted work. This is a violation of ARS 32- 1154.A.2 (warning letter sent).

Respondent is to correct item 5 in an appropriate manner in accordance with the bold, italicized and underlined paragraph in this directive. 2. Complaint Item 6. Old chain link fencing was to be hauled away, but left toppled over on neighbor’s yard and alley. The respondent is to correct the condition in an appropriate manner. 3. Complaint Item 7. Left cement “seat”, was to have been hauled away. The respondent is to remove the concrete waste in the north side yard in an appropriate manner. The Directive further indicated the following: You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

4. On July 9, 2019, the Investigator notified Respondent of possible violation of A.R.S. § 32-1154(A)(12) with regard to the written contract. RECEIVED 12.19.2019 ROC LEGAL

5. On July 10, 2019, the Investigator notified Respondent of possible violation of A.R.S. § 32-1154(A)(16) with regard to bidding, contracting, or performing work outside the scope of his its CR-21 license. 6. The Investigator conducted a compliance inspection on August 9, 2019. Respondent was not in attendance; Respondent had previously informed the Investigator that the corrective work was not performed “due to access issues.” At the time of the inspection, the Investigator observed that corrective work had not been performed or completed. 7. The Investigator’s jobsite inspection notes indicate that Complainant had remedied the permitting issue, but also had been out of the country for most of the compliance time frame, and Complainant did not have any invoices from other appropriately licensed contractors for the requisite block wall corrective work. The Investigator also noted that, because Complainant had not given access to Respondent

during the compliance period, the Respondent was “deemed complaint.” 2

8. The Investigator’s jobsite inspection notes indicate he had discussions with

Complainant regarding the need to allow Respondent to have access after which she

relented and agreed to allow access through her yard on a particular date at 10:00 a.m. The Investigator extended the time period for compliance and also notified Respondent of the chosen date. 9. On that date and time, Complainant was not at her home; however, she had called Respondent minutes before the appointed time, asking him to come at 10:30 a.m. Respondent checked in with the Investigator who informed Respondent that they could proceed on to their other projects for the day. 10. On or about September 5, 2019, the Registrar issued a Citation to Respondent for the alleged violations of the following:

2 The “access” issue was further complicated because Complainant was insisting that Respondent gain access for the corrective work through the alley which, as verified by the Town of Prescott Valley, is an easement behind her property and as to the other adjacent/surrounding homeowners’ properties and the easement is not open to the public. At hearing, the Investigator indicated that he is not authorized to direct Respondent to use the easement to complete this corrective work. RECEIVED 12.19.2019 ROC LEGAL

a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of the license); d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification); e. A.R.S. § 32-1154(A)(12) (failure in any material respect to comply with A.R.S. § 32-1158). 11. Respondent timely filed its Answer to the Citation, admitting that it had not obtained a permit for the block wall, that it had performed work outside the scope of the license, and indicating that Complainant had not permitted access to

her property to perform other corrective work. Respondent made a resolution offer

to Complainant, which was not accepted.

12. The Registrar referred the matter to the Office of Administrative

Hearings, an independent state agency, for an evidentiary hearing. 13. At the hearing, Complainant testified on her own behalf. Mr. Wright testified on behalf of Respondent. Jim Dimond, the Investigator, testified on behalf of the Registrar. 14. The Tribunal admitted to the hearing record the documents forwarded from the Registrar. Additionally, the Tribunal held the record open for Complainant to present more photographs that she had taken, which she was able to provide to Investigator and Respondent at the time of the hearing (in Flagstaff).3 15. At hearing, the Investigator presented the background of this matter and testified regarding his inspections, the Directive, and the Citation issued by the Registrar. The Investigator noted that, in order to perform the corrective action as to Complaint Item The photographs were received at the Tribunal, and were reviewed in consideration of the hearing record. RECEIVED 12.19.2019 ROC LEGAL

5, Respondent was not permitted to do that work itself but would have to pay for an appropriately licensed contractor hired by Complainant for the work that must be performed. The Investigator specified that he is unable to address other asserted workmanship issues Complainant raised in her Complaint regarding the block wall because the work was out of the scope of Respondent’s license. 16. At hearing, Complainant indicated that she wanted to have the block wall completed correcting various issues. Complainant presented her multiple concerns about the workmanship on the block wall and indicated that she had spoken with “Yavapai Landscaping” about redoing the wall. 17. The Investigator interjected that if Yavapai Landscaping did the work, they would be outside the scope of their CR-21 license. The Investigator noted that the work would have to be performed by a contractor with a CR-31 license, an R-31 license, or a B-4 license.

18. Complainant further noted that she did not want Respondent to perform the

other corrective work by means of access through her yard, fearing that Respondent

would “mess up” the landscaping. Complainant also noted that the weed fabric was not

completely covered by rock in places and that there was supposed to be two inches of rock, but there was not two inches. 19. The Investigator had noted that, a year ago, there had been a change in the CR-21 license of hardscaping. In this case, Respondent’s installation was after the licensing change. The Investigator noted that weed fabric and rock/gravel no longer fell within the CR-21 hardscape license and, therefore, he could not direct corrective action by Respondent on weed fabric and rock/gravel issues. 20. At hearing, Respondent expressed its desire to have come to a resolution in this matter. 21. The hearing record demonstrates that, during the corrective work period, Complainant was, at times, either not present (i.e., out of town) and/or had denied access to Respondent through her property to the areas needing the corrective work on RECEIVED 12.19.2019 ROC LEGAL

Complainant Item 6 and Complaint Item 7. Having previously insisted that Respondent obtain access through the easement, Complainant only relented after the corrective work period had ended to allow Respondent access to those areas through her yard. On the date and at the time that she had then arranged, Complainant was not available at her home to allow Respondent access. Therefore, the evidence indicates that Complainant denied access to Respondent to perform corrective action to remedy the deficiencies noted in the Directive. 22. The hearing record demonstrated that Respondent had performed work on the Project outside the scope of his CR-21 license. Therefore, under existing contracting laws, Respondent’s compliance as to Complaint Item 5 is limited to payment for an appropriately licensed contractor hired by Complainant to perform the directive-stated corrective work. In this case, Complainant has not provided any invoices from an appropriately licensed contractor for the requisite corrective work.

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, Complainants 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

RECEIVED 12.19.2019 ROC LEGAL

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:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction Project or operation completed in accordance with such plans and specifications and code. 3. Violation of any rule adopted by the registrar. … 12. Failure in any material respect to comply with this chapter. … 16. Knowingly contracting beyond the scope of the license or licenses of the licensee. …

22. 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.….

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. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32- 1101 et seq.), A.R.S. § 32-1158 requires in pertinent part that any contract in an amount RECEIVED 12.19.2019 ROC LEGAL

of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:

A. 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….

7. A.R.S. § 32-1154(A)(2). The hearing record demonstrates that Respondent had not pulled a permit for the work and that Complainant eventually did obtain a permit.

Therefore, the evidence establishes cause to discipline Respondent’s contractor’s license

under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or

specifications or of any building codes. Respondent presented no legal excuse to depart

from obtaining a permit in compliance with building codes. 8. A.R.S. § 32-1154(A)(3). While Complainant continues to have concerns about the workmanship issues on the block wall, the hearing record establishes that Respondent is not physically allowed to correct the Complaint Item 5 as that work is outside the scope of its CR-21 license. Respondent acknowledges that the Directive as to the block wall is not completed. In this instance, Respondent is required to remedy this violation by paying an appropriately licensed contractor who is hired by Complainant to correct the workmanship deficiencies or reach a financial settlement with Complainant. Through no fault of its efforts, Respondent has not been able to remedy this deficiency. Complainant has not yet hired an appropriately licensed contractor to correct the workmanship deficiencies and Complainant has not agreed to come to a financial settlement. RECEIVED 12.19.2019 ROC LEGAL

9. A.R.S. § 32-1154(A)(12). The evidence demonstrates a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158 regarding the required contents of a contract between the parties. Among other concerns, the contract between the parties was lacking the A.R.S. § 32- 1158(A)(9) required disclosure regarding filing a complaint with the Registrar. 10. A.R.S. § 32-1154(A)(16). The evidence demonstrates a clear violation of A.R.S. § 32-1154(A)(16) for knowingly contracting beyond the scope of its license. Respondent did not dispute that it did not have the proper license to do the work it contracted to do for Complainant and then performed. 11. A.R.S. § 32-1154(A)(22). The hearing record demonstrates that Complainant failed to allow access for Respondent to complete the corrective action, at a minimum, for the work Respondent was allowed to do (Complaint Items 6 and 7). Even though Complainant did not want Respondent to come onto her property, the evidence

established that Complainant finally recognized, and relented, to the requirement to allow

Respondent to do corrective work. Through no fault of its efforts, Respondent has not

been able to remedy these deficiencies.

12. As stated above, the evidence established that Respondent was prevented from having completed the corrective work as to Complaint Item 5 because Complainant had not obtained a properly licensed contractor for the block wall issues, and Complainant had not, in any final effort to allow the remaining Directive work to be completed, granted access to Respondent to the Project. Accordingly, the hearing record has established that Respondent’s license should be disciplined only for violations of A.R.S. § 32- 1154(A)(2), the permit isue; A.R.S. § 32-1154(A)(12), the written contract issue; and, A.R.S. § 32-1154(A)(16), the out-of-scope issue. 13. Because Respondent has violated A.R.S. § 32-1154(A), ROC has authority to discipline its license, including imposition of a civil penalty. 14. A review of Registrar’s website shows that Respondent has no prior disciplinary action against its license, which is a factor in mitigation. An additional factor RECEIVED 12.19.2019 ROC LEGAL

in mitigation is Respondent attempted efforts and acceptance of responsibility for its failures regarding the Project. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Respondent’s License Number 240842 be suspended for one day. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $200.00 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, December 19, 2019. /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors