ALJDEC decisions subject to certification as final

2020A-02123-CHC-ROC · Registrar of Contractors · 2021-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary Michael Trauter,

COMPLAINANT

Sonoran Earthworks Landscape LLC

License No. 316580,

RESPONDENT

No. 2020A-02123-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 5, 2021

APPEARANCES: Complainant Gary Michael Trauter, appeared via Google Meet and was represented by Thomas Moring, Esq., also appearing via Google Meet. Michelle Simpson, Esq., appeared via Google Meet on behalf of Respondent Sonoran Earthworks Landscape LLC. Patrick Kilgore qualifying party for Respondent appeared via Google Meet. Jack Grimm, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Sonoran Earthworks Landscape LLC (Respondent) is the holder of License No. 316580 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 15, 2017, Gary Michael Trauter (Complainant) signed a contract with Respondent to install a patio at this residence.

On or about April 28, 2020, the Registrar received a Complaint containing eleven items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. The original inspection was performed on May 26, 2020.

Investigator Grimm then issued a written directive on or about June 6, 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 or before July 6, 2020.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #2: Contractor was to at least seal the patio with Black Diamond Semi Gloss sealer (per agreement that I did not see until 9-4-2019 and was not signed by me) but that was never done and you can see the mold spots forming on some of the tile which the sealer was supposed to prevent, in addition to a lot of discoloration from the leaching of the red granite used as a base material through the porous limestone, with the white limestone – distributor said he should have never used red decomposed granite as a base.

Investigators Observation: Per document Agreement for Performance of Work dated 9-3-2019 as listed Limestone Pavers – Undercover Back Patio it states sealing of back Patio with Black Diamond Semi-Gloss. It was observed that the sealing has not taken place. Freska Limestone pavers are not sealed and have discoloration, stains and possible mold that has taken place since the installation. Unable to determine if the staining is due to the base aggregate that was used or just stained due to the fact the pavers never got sealed as outlined in the agreement.

*Correct locations of discolored and stained pavers and seal per Agreement for Performance of Work.

Governing Rule: 32-1154(A)(3) poor and/or incomplete work

Complaint Item #3: When we had the lighting contractor install lights at the edge of the pavers we discovered that the installation of the pavers was not uniform or straight, we pointed it out the landscape contractor and he said he would take care of it – we have been waiting since the end of October 2019 for that fix.

Investigators Observation: Observed edge pavers that were installed over a block (CMU) raised border around the covered back patio. It was apparent that the edge was not straight with pavers one to another not in line and a visual bow in portions of the edge. Edge should be straight and tru.

*Correct by appropriate means.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #4: The pavers have settled noticeably in several spots, we pointed it out as needing to be fixed in addition to several areas where pavers tiles have become loose on the edge of the step causing several people to lose their balance when they stepped on a loose paver – again said he was going to “fix it” and we are still waiting.

Investigators Observation: Observed several edge pavers that are installed over a block raised border that are loose and out of align as addressed in #3 above. Observed several locations where settling has taken place with uneven or wavy pavers. This patio appears to not have much slope as it is covered by a roof structure so flatness will not be affected by slope. Excessive deviations, dips and sags over short distances are considered unacceptable and there should be no more than 1/8 inch difference in height between adjacent pavers.

*Correct locations of settling and uneven pavers.

Governing Rule: 32-1154(A)(3) Poor work.

(All errors contained in the original).

After agreement by the parties to delay the Compliance Jobsite Inspection until August 25, 2020, Investigator Grimm issued his Compliance Jobsite Inspection Notes on August 26, 2020, noting that Items 2 and 4 were still incomplete.

On or about August 28, 2020, 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).

On or about September 10, 2020, Respondent submitted its Written Answer to Citation and Complaint.

On or about June 24, 2020, the Registrar issued a Notice of Hearing scheduling a hearing on November 9, 2020 before the Office of Administrative Hearings, an independent State agency.

After several continuances, a hearing was held on March 5, 2021.

At the outset of the hearing, Complainant’s 42 exhibits as well as Respondent’s 31 exhibits were entered into the record.

Investigator Grimm testified as to his involvement with the inspections and his directives.

Investigator Grimm testified that he believed that the time to complete the repairs was sufficient.

Investigator Grimm also testified that the sealing of the pavers was important to prevent moisture and stains. He further testified that the sealing had been completed on the tiles, but the tiles that were replaced were much brighter than the existing tiles.

Further Investigator Grimm testified that 10-15% of the tiles still had stains or discoloration.

Finally, Investigator Grimm testified that there was active construction on the property during his initial inspection, and he learned that the paver tiles were covered with ram board while patio construction was ongoing.

Complainant testified that the patio project was initially part of a larger project, but that the patio was started first. He testified that he paid $60,511.63 per the terms of the contract and did not believe that Respondent did $61,000.00 worth of work.

Complainant testified that upon completion of the patio there was settling and loose tiles such that guests would trip and there was staining everywhere.

As to the sealing of the pavers, Complainant testified that he learned that they needed to be sealed on all six sides and believed that per the terms of the contract, he believed the sealing would have been done upon installation and not at a later date.

Complainant testified further that sealing over the already stained tiles locked in the stains. In addition the tiles that were replaced now resulted in a non-uniform color on the patio.

Complainant also testified that it was ultimately his decision to have Respondent start the patio when the ceiling still needed to be finished.

Complainant testified that as to the settling of the tiles, there was at least one area with a “hump” and a “dip” at the east facing sliding door as of October 30, 2020.

Respondent testified that he has been in business for 22 years and there had been no prior complaints about his quality or workmanship.

Respondent testified that originally a different tile was to be used, but that Complainant’s wife changed the type of tile.

Respondent testified that he had previously installed this same tile and has not sealed the tile on all six sides. He further testified that the sealant was not to protect the tile but rather to enhance its colors.

Respondent further testified that it was a bad idea to do the patio before the ceiling work because the tiles could have settled unevenly while work was ongoing from above. He also testified that the stains could not have come from mold as there was the ceiling to protect the tiles from the weather.

Respondent testified that when he pulled up the tiles and inspected the same he noticed the bottom of the tiles were still white with zero staining, so the stains could not have “leeched up” from the bottom.

Respondent testified that while the contract called for sealing of the tiles, he did not purchase any sealant until August 15, 2020. However, he testified that he would have done the sealing at the end of the entire project.

Respondent also testified that he inquired as to how many tiles he had to replace because he knew that new tiles would not match up color wise with the five month old tile.

Respondent testified that he believed that the staining was caused by the ram board being placed on the patio for four months while the ceiling was being worked on. However, Respondent admitted that the issues with the settling were his responsibility as maybe the ground was not compacted enough, but also added that he would not recommend anyone to put scaffolding on new tile or 12 year old tile.

Respondent also testified that when he last went to the jobsite on September 4, 2020, the dip was repaired and level.

Finally, Respondent believed his repair work was in compliance with the written directive.

Administrative notice is taken of Respondent’s prior License record on March 9, 2020. Such prior License record reflects that Respondent’s License No. 316580 was first issued on November 27, 2017, and is active. Such prior License record also reflects that there is 1 open complaint, namely the present 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. The Respondent admitted that he did not stain the tiles despite the contract providing for the same. He also acknowledged that the settling of the tiles were because he did not compact the ground well enough prior to installation. Further, there was poor work with edge of the pavers not being straight. 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 greater weight of the evidence established that Respondent failed to complete all of the corrective work following the Directive being issued. There was no dispute at hearing that complaint item 3 from the written directive was properly repaired. While the sealing of the tiles is now complete, Investigator Grimm testified that there were still discolored pavers which were not replaced. Despite Respondent’s testimony that he did not know how many tiles were to be replaced, he should have followed the directive and if they all were stained, then they all should have been replaced, regardless of the cause of the stains. Perhaps had Respondent sealed the tiles as the contract required him to at the outset, it would have protected the pavers from the stains. At a minimum, it could have made his argument more persuasive that the stains occurred through no fault of his own.

Finally, the greater weight of the evidence shows that the pavers are still uneven as shown in Complainant’s photographs from October rather than Respondent’s photographs from September. 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. 316580 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)(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.

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Done this day, March 16, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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