ALJDEC decisions subject to certification as final

2019A-03085-CHC-ROC · Registrar of Contractors · 2019-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Eloisa Chomina,

COMPLAINANT

Green Canyon Landscaping Inc.,

ROC License: ROC 321468,

RESPONDENT

No. 2019A-03085-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 4, 2019

APPEARANCES: Complainant Eloisa Chomina appeared on her own behalf. Carmen Renteria, Owner, appeared on behalf of Respondent Green Canyon Landscaping Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Green Canyon Landscaping Inc. (Respondent) is the holder of License No. 321468 issued by the Arizona Registrar of Contractors (Registrar).

In July 2017, Eloisa Chomina (Complainant) entered into a verbal agreement with Respondent for a landscaping project at Complainant’s home.

On or about June 28, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Ruben Perez. After a jobsite inspection, Investigator Perez 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 the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 12, 2019.

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

Complaint Item 1: Poor work on 7 flower planters, unleveled.

Investigator's Observation: Several areas of planters in front yard are out-of-level as much as 2 inches to 4 feet. Some are out-of-level creating significant gaps in between bricks. Bricks are loose on some planters.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically Rule 4-9-108

Complaint Item 2: Poor work on front and back yard pavers damaged.

Investigator's Observation: Some pavers are loose and one paver is missing near front door/gate. Sand is missing from a few pavers in driveway. Pavers have about half inch lippage at concrete slab on West side of garage.

Governing Rule: Workmanship Rule: ARS 32-1154(A) (3) specifically Rule 4-9-108

Complaint Item 4B: Problems w lighting control system

Investigator's Observation: Control boxes in garage for lights are hanging from one screw, not properly attached and leveled.

Governing Rule: Workmanship Rule: ARS 32-l154(A) (3) specifically Rule 4-9-108

Complaint Item 6: Existing fence was removed and installed crooked

Investigator's Observation: Wrought iron fence section on East side of residence was not re-installed straight by up to t 3/8" on one side. Respondent confirmed he removed fence to build planter and installed it back.

Governing Rule: Workmanship Rule: ARS i2-l154(A) (3) specifically Rule 4-9-108

Complaint Item 8: Existing concrete was damaged when he cut it.

Investigator's Observation: Respondent said he cut concrete on side yard to bury water lines to back yard. Edge is chipped or broken at several places.

Governing Rule: Workmanship Rule: ARS 32-l154(A) (3) specifically Rule 4-9-108

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

Following the issuance of the written directive, Respondent performed corrective work on the project. Respondent was unable to perform all the work by the deadline in the written directive, but Complainant allowed Respondent to work on the project after the deadline expired. After Respondent completed all of its corrective work, Investigator Perez was notified the corrective work had been performed, but Complainant was not satisfied with the repairs.

Investigator Perez issued a warning letter to Respondent regarding Respondent’s failure to have a written contract when the project was more than $1000.00 in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A).

Investigator Perez referred the matter to the legal department with a pencil citation for possible violations of A.R.S. § 32-1154(A), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(22), and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A).

On or about September 17, 2019, the Registrar issued a Citation against Respondent. However, due to a typographical error, the Citation did not include any references to the statutes Respondent was alleged to have violated.

On or about October 31, 2019, the Registrar issued a Notice of Hearing to the parties. However, continuing the typographical error from the Citation, the Notice of Hearing did not include any references to the statutes Respondent was alleged to have violated.

At the time of the hearing, Respondent acknowledged that it was aware the possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22) were at issue, but believed that the lack of a written contract had been resolved through its receipt of the warning letter. As Respondent was prepared to proceed on the workmanship and failure to comply with a written directive issues, but was unprepared for the contract issue, the hearing proceeded on the limited alleged violations.

Investigator Perez testified that during the compliance inspection, all of the issues identified in the directive were corrected to be within the Registrar’s standards except one item. With respect to the seven flower planters, Investigator Perez’s notes from the compliance inspection provide as follows:

Planters were re-done and are now leveled. All bricks are properly attached. Most gaps between bricks were corrected however, two areas in back planter (along back wall) have a 1/2” and a 3/8” gaps. Respondent is not in compliance.

Investigator Perez testified that the Registrar’s standards allow for a gap of 1/4 inch.

Complainant testified that she was completely unsatisfied with the work Respondent performed on the project. Complainant stated that after Investigator Perez issued the written directive, Respondent corrected the uneven tiles on the patio that were specifically pointed out, but did not correct all the uneven tiles.

Ms. Renteria testified that Respondent was denied access to complete the corrective work. Based on the timeline Ms. Renteria presented, the denial of access was after the deadline in the directive expired. Ms. Renteria acknowledged that Respondent performed corrective work after the deadline expired, but asserted Respondent was not allowed to correct the remaining item after Investigator Perez conducted the compliance inspection.

Administrative notice is taken of Respondent’s prior License record on December 24, 2019. Such prior License record reflects that Respondent’s License No. 321468 was first issued on August 13, 2018, and is active. Such prior License record also reflects that there were two open complaints and no prior resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

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.

The evidence established that Respondent did not complete the corrective work on the flower planters in compliance with the Registrar’s standards 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).

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. 321468 for a period of one day.

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.

-54864001

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-137160-45720000Done this day, December 26, 2019.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000