ALJDEC decisions subject to certification as final

2020A-01602-CHC-ROC · Registrar of Contractors · 2020-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Silvana Salvatrice Shofner

COMPLAINANT

New Image Landscape and Pools LLC

License No. 069226, 319979, 247546

RESPONDENT

No. 2020A-01602-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 25, 2020

APPEARANCES: Complainant Silvana Salvatrice Shofner appeared on her own behalf via Google Meet. James D. Stewart for appeared via Google Meet on behalf of Respondent New Image Landscape and Pools LLC. Albert Bernal, Investigator for the Registrar of Contractors, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

New Image Landscape and Pools LLC (Respondent) is the holder of License Nos. 069226, 319979, and 247546 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 30, 2018, Silvana Salvatrice Shofner (Complainant) signed a contract with Respondent to construct a pool with hardscape and landscape.

On or about April 1, 2020, the Registrar received a Complaint containing one item against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Albert Bernal. The original inspection was performed on May 4, 2020.

Investigator Bernal then issued a written directive on or about June 1, 2020 to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 22nd, 2020.

. . .

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

Compliance Item: 1 - Incurred severe flooding post rain on the south side of property due to poor construction of paver pad built. Company personnel admitted poor construction last year and agreed to add needed drainage box/piping. After several months of trying to schedule, company wrote a change order with drainage plans. As date drew near, the owner called on 3/30 and stated they no longer agreed to correct and pay. Owner was belligerent and seemed to have little facts on the situation, agreement to date.

Investigator’s Observation: I noted that the pavers extension done to the driveway at RV gate area appeared to be damming the water on the side yard on the of the south of the property. Provide proper drainage to allowed for all the water to dissipate and exit the side area in question. Appropriate repairs are needed.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

All errors in original.

Following the issuance of the written directive, no attempts were made by Respondent to remedy the drainage issue prior to the June 22, 2020 deadline.

The Registrar issued a Citation against Respondent on June 24, 2020, 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 that there was no compliance inspection performed because he was informed by both parties that the work had not been completed by the June 22, 2020 deadline.

Mr. Bernal also testified that he had 13 years of experience in grading projects but no experience with installation of pavers.

Mr. Bernal testified that during his inspection he took into consideration the pool and the landscaping, but did not inspect the neighboring house to the left.

Complainant and her husband, Craig Shofner, testified and presented seven exhibits which were entered into evidence. Ms. Shofner testified that when it rained in February 2019, they first noticed the standing water on the side of their yard.

Ms. Shofner testified that she filed her first complaint to the Registrar, in April 2019, but that they worked with Respondent to repair the issue and they withdrew the complaint.

Ms. Shofner testified that in November 2019, there was flooding again after severe rain. After a few months they worked with Respondent and in March 2020, had plans drawn up with David Weir to fix the drainage issue.

Ms. Shofner further testified that they agreed to pay approximately $456.00 to Respondent to resolve the issue. However, Respondent failed to commence work and thus, Ms. Shofner filed the present complaint.

Mr. Shofner testified to the same and added that between June 1 and June 22, 2020, Respondent made no contact with him to set up the work as was required by the directive. In addition, Mr. Shofner testified that on June 24, 2020, Respondent’s workers came to the residence to complete the work at 6:00 a.m. without notice and he told the workers to leave the property.

Mr. Stewart presented 17 exhibits and testified along with witnesses David Weir and Luis Santillan. Mr. Stewart testified generally that he believed the drainage issue was resolved back in April 2019, when they performed the corrective work in exchange for the Shofner’s dropping their complaint.

Mr. Stewart provided two theories for the flooding. The first was that the flooding was coming from the neighbor’s property, as that property was at a slightly higher elevation than the Shofners’. The second theory was that the Shofners were over-watering their trees which led to the flooding.

Regarding the March 2020 drainage plan and the agreement regarding the same, Mr. Stewart testified that he did not sign off on the plan/agreement that was drawn up by David Weir.

Finally, Mr. Stewart testified that he did not timely attempt to comply with the written directive.

David Weir testified that as to the March 2020 plan, Respondent would not pay for any of the work, and that if the Shofners wanted the work completed, they could contract with their employee, Luis Santillan directly.

Luis Santillan testified as to how he initially installed the pavers and did not alter the original grading.

Further, Mr. Santillan testified that he arrived at the Shofner property on June 24, 2020, assuming that they were aware he was going to be there, and that he was told not to complete the work and to leave the property.

Administrative notice is taken of Respondent’s prior License record on August 26, 2020. Such prior License record reflects that Respondent’s License No. 069226 was first issued on October 21, 1987. Such prior License record also reflects that there is one open complaint, namely the present complaint. As to Respondent’s License No. 319979, that License was first issued on May 14, 2018, and is currently active with no history of complaints. As to Respondent’s License No. 247546, that License was first issued on August 18, 2008. Such prior License record also reflects that there is one open complaint.

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. Severe flooding occurred on the south side of the house and the evidence showed that this was caused by the pavers not the neighboring property, nor over-watering of the trees. 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 also established that Respondent failed to complete the corrective work following the directive being issued. Further, trying to remedy the situation two days after the time had expired without notice to the Shofners was not an attempt to correct the work. 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. 069226 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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)(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 40 days from the date of that certification.

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-137160-45720000Done this day, September 10, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000