ALJDEC decisions subject to certification as final

2020A-02719-CHC-ROC · Registrar of Contractors · 2020-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Alan Murphy

COMPLAINANT

Desert Lifestyles Inc.

License No. 190993,

RESPONDENT

No. 2020A-02719-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 9, 2020

APPEARANCES: Complainant David Alan Murphy appeared on his own behalf. David Voss, Owner, appeared on behalf of Respondent Desert Lifestyles Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Lifestyles Inc. (Respondent) is the holder of License No. 190993 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 10, 2019, David Alan Murphy (Complainant) signed a contract with Respondent for the construction of a swimming pool and decking.

On or about June 4, 2020, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project. Complainant indicated that travertine tiles were buckled all around the pool, the tiles were cracked and separated, and tiles had raised up and snuck all around the pool.

On or about June 9, 2020, the Registrar received a Building Confidence Program Request Form from Respondent indicating that Respondent installed three piece pattern travertine pavers around the perimeter of the swimming pool per the manufacturer’s specification and that after “a long wet winter” most of the pavers were buckling up and alleging this was an “act of mother nature” therefore, Respondent did not feel responsible for the issue.

The Registrar assigned the complaint to Investigator Michael Wiskow.

On or about June 23, 2020, Investigator Wiskow performed a jobsite inspection. Following the inspection, Investigator Wiskow notified the parties that the complaint was dismissed and stated the following:

There is an obvious heave all around the pool deck. At this time without some sort of engineering report, I am unable to determine why there is excessive soil expansion and whether or not the soil expansion and resulting heave is the result of poor workmanship by the Respondent.

On or about July 14, 2020, Investigator Wiskow performed a second jobsite inspection because Complainant had removed some pavers to allow the investigator to observe how much subbase had been installed. At that time, Investigator Wiskow recorded in his notes the following: “The complainant dug down approx. 4 inches. There was 1 inch of sand and then site material under that. Not enough or any sub base to ensure limited soil movement below tiles.”

On or about July 22, 2020, Investigator Wiskow issued a written directive 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 August 21, 2020.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Travertine tiles are buckled all around the pool

Investigator’s Observation: There is an obvious heave all around the pool deck. After further investigation, there isn't enough sub base installed to ensure there is limited soil movement below tiles.

-Contractor should make necessary repairs by appropriate means.

. . . .

Compliance Item: 2 - Tiles are cracked and separated

Investigator’s Observation: As a result of inadequate sub base installed under tiles, tile movement has cracked grouted joints.

-Contractor should make necessary repairs by appropriate means.

. . . .

Compliance Item: 3 - Tiles have raised up and sunk all around the pool. No longer drain away from the pool

Investigator’s Observation: As a result of tile movement, there is no longer a positive drain away from the pool edge. The tile deck should drain away from the pool deck.

-Contractor should make necessary repairs by appropriate means.

Following the issuance of the written directive, Mr. Voss and Respondent’s paver installer met Complainant on the jobsite. At that time, Respondent removed pavers from 3 locations around the swimming pool to observe the condition of the materials under the pavers. Based on Respondent’s observations, there was four inches or more of compacted ABC and two inches of compacted sand in all three locations. Respondent concluded that it performed its work properly and should not be held responsible for the soil expansion below its installation. Accordingly, Respondent did not perform any corrective work as directed.

After the deadline in the directive expired, Investigator Wiskow was notified no corrective work had been performed. On or about August 24, 2020, Investigator Wiskow performed a compliance jobsite inspection and noted Respondent had not complied with the directive.

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(A); and A.R.S. § 32-1154(A)(22).

Investigator Wiskow testified as to his observations during the inspections.

Complainant testified that the grout was gone and some of the travertine tiles had heaved a couple of inches. Complainant also stated that the water was not running away from the pool. Further, Complainant noted that the concrete by the steps had cracked. Complainant acknowledged that Respondent visited the site after the directive had been issued, but stated that no corrective work had been done.

Mr. Voss testified that the work Respondent performed was appropriate and was not poor workmanship. Mr. Voss asserted that Respondent should not be held responsible for the presumptively expansive soil present under the travertine tiles when it installed the tiles properly.

Administrative notice is taken of Respondent’s prior License record on November 30, 2020. Such prior License record reflects that Respondent’s License No. 190993 was first issued on November 24, 2003, and is active. Such prior License record also reflects that there were three open complaints and no prior 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. While Respondent asserted it was not responsible for the heaving and cracking of the tiles, Respondent provided no alternative reason for the issues that would relieve it of responsibility. 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(A).

The evidence established that Respondent did not attempt to 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. 190993 for a period of five 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)(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.

-54864001

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-137160-45720000Done this day, November 30, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000