ALJDEC decisions subject to certification as final

2021A-00608-CHC-ROC · Registrar of Contractors · 2021-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Deborah L. Wolford,

COMPLAINANT,

Acosta Landscape, Inc.

License No. ROC 212677,

RESPONDENT.

No. 2021A-00608-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2021

APPEARANCES: Complainant Deborah L. Wolford appeared on behalf of herself. No one appeared on behalf of Respondent Acosta Landscape, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. On or about January 25, 2019, Complainant Deborah L. Wolford and Respondent Acosta Landscape, Inc. (Acosta) entered into a residential landscaping contract.

2. On January 25, 2019, Acosta began work under the contract.

3. On February 19, 2019, Acosta stopped work.

4. On February 11, 2021, the Arizona Registrar of Contractors (Registrar) received a complaint from Ms. Wolford alleging that Acosta performed poor work and failed to follow construction plans in connection with a landscaping project.

5. Registrar Investigator Mike Wiskow investigated the complaint. Investigator Wiskow observed that Acosta failed to follow the plans for the landscaping project.

6. On March 8, 2021, Investigator Wiskow issued a Directive to Acosta that provided, in relevant part, as follows:

Dear Respondent:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 April 8, 2021.

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DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - I paid for 6 valves. Only 5 were installed.

Investigator’s Observation: There was evidence of five watering zones installed. The contract calls for six. The contractor should add the sixth zone where appropriate. Contractor should make repairs by appropriate means.

Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Compliance Item: 6 - Never put an emitter by one area where a tree was removed and another to be planted.

Investigator’s Observation: There was an area where a tree had been removed. Per the contract, the contractor should add irrigation to this area for future tree planting. Contractor should make repairs by appropriate means.

Compliance Item: 11 - The system has leaks in some areas.

Investigator’s Observation: Photos from the complainant indicate some areas are leaking. The contractor should identify any leaks if they are present and repair them. Contractor should repair by appropriate means. 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.

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7. On April 12, 2021, Investigator Wiskow conducted a compliance job-site inspection. Investigator Wiskow discovered that Acosta had not corrected the Directive items.

8. On December 2, 2020, the Registrar issued a Citation alleging that

Acosta may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(a) and A.R.S. § 32-1154(A)(22).

9. On December 17, 2020, Acosta filed a timely answer to the Citation.

10. The matter was referred to the Office of Administrative Hearings.

11. A hearing was held on July 7, 2021.

12. At hearing, Ms. Wolford testified on behalf of herself. Investigator Wiskow testified regarding his investigation of the complaint including the issuance of the Directive.

13. Ms. Wolford explained that Acosta failed to perform the landscaping project in accordance with the written plans.

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. A.R.S. § R2-19-119.

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.” A.R.S. § 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).

A.R.S. § 32-1154(A) provides:

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:

2. Departure from or disregard of:

(a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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 must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive. A license may not be revoked or suspended nor may any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

7. The preponderance of the evidence shows that Acosta failed perform the landscaping project in accordance with the plans, which is a violation of A.R.S. § 32-1154(A)(2)(a).

8. The preponderance of the evidence shows that Acosta failed to comply with the Directive, which is a 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 suspend License No. 212677 held by Acosta Landscape, Inc., for three calendar days.

It is further recommended that the Registrar require Respondent pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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.

Done this day, July 26, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors