ALJDEC decisions subject to certification as final

2020A-03792-CHC-ROC · Registrar of Contractors · 2021-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Susan Petersen ,

COMPLAINANT

European Pavers Southwest Inc

License No. ROC 092211,

RESPONDENT

No. 2020A-03792-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 3, 2021

APPEARANCES: Michael J. Harper, Esq. for Complainant; Rex Mann for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On July 30, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on September 3, 2021 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent European Pavers Southwest Inc. may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 092211 issued by ROC. Rex Mann, Respondent’s general manager appeared and testified for Respondent. Mr. Mann was not involved in construction at issue, but got involved to help resolve this complaint. He has twenty-seven years’ experience in the construction industry, including teaching and appearing as an expert witness.

Complainant Susan Petersen appeared through counsel and testified and presented the testimony of Kimberly Tracy.

ROC investigator Chris Allison also testified.

In June 2018, Ms. Petersen hired Respondent to install driveway pavers on an existing gravel driveway, to install patio pavers on existing concrete, and to expand a patio at a house in Strawberry Arizona.

The contract’s scope of work provides: “All grade engineering to insure proper drainage given existing site parameters.”

The driveway drains toward the front of the house that has a covered patio. The patio is an estimated forty-five feet wide by six to seven feet deep with stone columns.

Prior to Respondent performing its work, there was a French drain at or about the bottom of the driveway. Typically French drains have no outlet per se, but rather these capture water that leaches into the soil. There are drains in the front of the house that channel water to the back, but it is not known whether the French drain was connected to these drains.

Respondent covered the French drain and installed over it a 3-inch drain, that the parties at times called the “trench drain.” The 3-inch trench drain does have an outlet.

After Respondent installed the driveway pavers and new drain, rainfall runoff began pooling on front patio and was impacting the house.

Ms. Petersen had not experienced this ponding or pooling before Respondent installed the driveway pavers.

On August 6, 2020 Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

More specifically, Ms. Petersen alleged that Respondent had covered over the existing French drain with a smaller drain resulting in the front of the house and patio being damaged by flooding, and that some of the other patio work had not been completed.

As of the hearing date, the only outstanding issue was the ponding of water on the patio.

Ms. Petersen’s complaint shows that the contract price was $35,500 and that she had paid $28,000. Respondent has recorded a lien against the property.

Ms. Petersen bought the house in August 2013 and lives there and in Scottsdale. In the five years before Respondent installed the pavers and the 3-inch trench drain, there was no flooding or pooling of water on the patio, but there has been pooling or ponding in every heavy rain since that time. Respondent completed its work in August 2018, and damage first occurred on September 3, 2018.

Ms. Petersen had entered into evidence photographs showing staining on the house and patio columns at various heights demonstrating that the pooling had occurred more than once and at more than one depth. Ms. Petersen acknowledged that the water had never overtopped the threshold, but she there were some trim pieces that had come loose inside the house.

ROC’s Mr. Allison conducted a jobsite inspection on September 8, 2020.

On September 14, 2020, ROC issued to Respondent a Directive that provided in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on October 14, 2020.

***

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Contractor installed a 3" deep trench drain covering the existing french drain in front of the patio. It does not carry sufficient water- my house and front patio have been damaged from flooding.

Investigator’s Observation: At the time of the inspection I ran a garden hose into the installed drain. The hose was running at approximately 1/4th of max. The drain filled to almost full and was draining slowly. The amount of water from the hose is only a fraction of the amount of water from a rain shower. The drain is not adequate to handle the water shedding down the driveway.

Respondent shall correct in an appropriate manner in compliance with workmanship and industry standards.

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.

Compliance Item: 2 - Existing 10'x12' patio was to be expanded to 10x16 feet, and then covered with pavers. It was not expanded as promised.

Investigator’s Observation: At the time of the inspection there was the existing `10' x 12' patio. There was a crude drawing that was submitted by the Complainant that shows an extension of the patio. The Proposal/Contract includes a patio extension.

Respondent shall complete the work in accordance with the accepted agreement (proposal/contract) and all workmanship/industry standards.

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.

Compliance Item: 3 - Second step up to patio was promised and never built.

Investigator’s Observation: At the time of the inspection there was a crude drawing that was submitted by the Complainant that shows "2 steps". The Proposal/Contract includes steps.

Respondent shall complete the work in accordance with the accepted agreement (proposal/contract) and all workmanship/industry standards.

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.

Compliance Item: 4 - Failed to install all the lights, and the lights they did install are partially failing.

Investigator’s Observation: At the time of the inspection the Complainant indicated that the purchased 24 lights. they were to be installed around the raised patio and the steps to the patio. Some of the lights were installed. Lights were not installed on all sides of the patio. Some of the lights are showing wear and some have broken covers. This damage does not appear to be from workmanship related issues. The Complainant my need to file a warranty claim with the light manufacture.

Respondent shall install lights as agreed too. Complainant will need to provide lights for Respondent.

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.

At Ms. Petersen’s request ROC extended to December 1, 2020 the deadline for Respondent to comply with the Directive.

On December 14, 2020, Mr. Allison conducted a compliance jobsite inspection at which time Respondent was actively working to correct the issues ROC ordered it to correct.

ROC issued to Respondent a Citation dated June 10, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

On September 2, 2021, Mr. Allison conducted a prehearing inspection.

Prior to the prehearing inspection, Respondent had corrected Compliance Items 2, 3 and 4.

Prior to the prehearing inspection Respondent had replaced the outlet fitting on the 3-inch trench drain. Mr. Mann testified that after the fitting was replaced, he ran the garden hose at full strength and the 3-inch trench drain was able to pass all the water.

Mr. Allison did not test the 3-inch trench drain during the prehearing inspection because the drain was the same size as it was during the initial inspection.

At the hearing, Mr. Allison testified to the effect that although he used the garden hose to test the drain originally, that hose is not adequate to prove that the drain is working properly because the volume of water is much smaller than is produced in typical rain events in Strawberry. Consequently, Mr. Allison did not test the 3-inch trench drain after Respondent replaced the outlet fitting.

Mr. Allison’s opinion is that runoff should not pass over a properly installed drain on a regular basis, that the drain should handle normal monsoon shower, and even in extreme events he would expect the drain to handle enough water so that there was no ponding coming in contact with the house.

Mr. Allison’s opinion is that the 3-inch trench drain is not meeting this standard and is not adequate to handle the water coming down the driveway. Consequently, his opinion was that Respondent had not corrected Compliance Item 1 as of the September 2, 2021 prehearing inspection.

Respondent does not agree that the 3-inch trench drain is inadequate because ROC’s workmanship standards allow some ponding water, provided that the water drains in a set amount of time.

Mr. Mann did not agree that the drain was required to stop the water from reaching the house, and was of the opinion that it was only required to stop standing or pooling water within the times set out in ROC’s workmanship standards.

Although Ms. Petersen had entered into evidence a video from July 24, 2021 showing rainwater passing over the drain, Mr. Mann did not agree that this shows that the drain is inadequate because it is only about thirty seconds, which is not enough time to make a valid determination considering ROC’s workmanship standard.

Mr. Mann did not agree that the 3-inch trench drain would handle less water than the French drain even though the French drain was larger. This was because French drains typically rely on the water leaching into the soil, whereas the 3-inch trench drain was passing the water into the existing drainage system.

Mr. Mann testified to the effect that by replacing the 3-inch trench drain outlet, Respondent had complied with ROC’s Directive because the drain was no longer draining slowly and could pass 100% of the flow from the garden hose. He also testified to the effect that although Respondent did not agree that all four Compliance Items identified by ROC actually were workmanship violations, Respondent fixed all four.

Mr. Allison was of the opinion that the slope of the driveway is such that the location of the French drain and the 3-inch trench drain is the only adequate area for a drain. Mr. Mann agreed that this was the proper location for a drain, but testified to the effect that in hindsight pavers may not have been appropriate for this driveway.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced showing that Respondent is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

The contract calls for Respondent to provide proper grading to insure proper drainage. As seen by the fact that water is ponding on the patio and impacting the house, Respondent has failed to do so.

Consequently, although ROC’s workmanship standards may allow some ponding of water, the preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Considering the facts and circumstances of this matter, it is appropriate for Respondent’s license to be suspended for one day and that it be assessed $100 civil penalty.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent European Pavers Southwest Inc.’s license No. 092211 for one day and that the Registrar impose against Respondent a civil penalty of $100.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, September 22, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000