ALJDEC decisions subject to certification as final

2019A-05960-CHC-ROC · Registrar of Contractors · 2020-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Charles Thomas Stensland,

COMPLAINANT

AZ Turf & More LLC,

License No. 314645,

RESPONDENT

No. 2019A-05960-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 22, 20202

APPEARANCES: Complainant Charles Thomas Stensland appeared on his own behalf. Tracy Tingue, Owner, appeared on behalf of Respondent AZ Turf & More LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

AZ Turf & More LLC (Respondent) is the holder of License No. 314645 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 29, 2018, Charles Thomas Stensland (Complainant) signed a contract with Respondent for landscaping work.

On or about December 2, 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 Albert Bernal. On February 19, 2020, after a jobsite inspection, Investigator Bernal issued a written directive to Respondent that provided Respondent was required to correct item four of the complaint, the grading and decorative rock in the side yard. The deadline for compliance with the directive was March 10, 2020.

Following the issuance of the written directive, Respondent removed some of the rock from the side yard, but did not address any grading issues. When the work was complete, Complainant indicated he was satisfied with the corrective work performed by Respondent.

On or about May 1, 2020, Investigator Bernal conducted a compliance jobsite inspection, at which he observed the following:

The grade and slope in the side yard area along the pavers were corrected, however, the grade and the decorative rock on the side yard from the back corner of the house to the front corner of the house [was] still high and [d]rainage was pitched the wrong way.

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; and A.R.S. § 32-1154(A)(22).

Investigator Bernal testified as to the Registrar’s involvement in this matter. Investigator Bernal indicated that he conducted the compliance jobsite inspection with short notice when he had an opening in his schedule. Investigator Bernal acknowledged that Respondent would not have received notice of the inspection prior to it occurring.

Complainant acknowledged that Respondent came out to the project and did the corrective work and Complainant stated that he accepted the work that had been performed. Complainant indicated he asked Investigator Bernal to conduct a compliance inspection.

Mr. Tingue testified that Respondent was willing to remove more work from the side yard if Complainant wants that done. Mr. Tingue denied that Respondent did any work on the grading and therefore could not be held responsible for any issues with that. Mr. Tingue indicated that the decorative rock had nothing to do with the drainage issues Complainant was experiencing. Mr. Tingue testified that he did not received notice of the compliance inspection prior to it having occurred despite being encouraged to attend the same.

Administrative notice is taken of Respondent’s prior License record on August 11, 2020. Such prior License record reflects that Respondent’s License No. 314645 was first issued on July 25, 2017, and is active. Such prior License record also reflects that there were no other open complaints, three prior complaints resulting in discipline, and two 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 the grading of Complainant’s side yard was improperly completed so it was draining towards Complainant’s home. Respondent was either contracted to perform the grading or accepted the grading as it existed when it installed the rock on top of the grade. Either way, the grading was Respondent was responsible for the grading of the side yard on the project and should have raised any issues with Complainant prior to installing the rock. As such, 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 appropriately 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).

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. 314645 for a period of two 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)(7), 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 40 days from the date of that certification.

-54864001

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-137160-45720000Done this day, August 11, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000