ALJDEC decisions subject to certification as final

2021A-01932-CHC-ROC · Registrar of Contractors · 2021-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Douglas Palm,

COMPLAINANT,

v.

Peter Reginald Austen

DBA: Austens Masonry

License No. ROC 154692,

RESPONDENT.

No. 2021A-01932-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 30, 2021

APPEARANCES: Complainant Steven Douglas Palm appeared on behalf of himself. Respondent Peter Reginald Austen appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On August 3, 2021, the Registrar of Contractors, (Registrar),

issued a Notice of Hearing setting the above-captioned matter for hearing on August 30, 2021, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that Peter Reginald Austen DBA: Austens Masonry (Austen) may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. sections 32- 1154(A)(12), (A)(16), and (A)(22); Ariz. Rev. Stat. section 32-1158.

3. A hearing was held on August 30, 2021.

4. At hearing, Complainant Steven Douglas Palm testified on behalf of himself and presented the testimony of his wife, Alisha Palm. Registrar Investigator Gregory Johndrow testified regarding his investigation of the complaint, including the issuance of the Directive. Austen testified on behalf of himself and presented the testimony of his employee, Matthew Deleplanque.

5. Austen holds Specialty Dual CR-31 Masonry License No. 154692 issued by the Registrar.

6. On or about November 5, 2020, Mr. Palm and Austen entered into a residential landscape construction agreement that included the installation of artificial turf. Mr. Palm agreed to pay Austen a total of 43,169.00 for the work.

Mr. Palm paid Austen $31,692.00 for the project.

7. Austen did not provide Mr. Palm with a written contract that advised Mr. Palm of his right to file a complaint with the Registrar against Austen for an alleged violation of Ariz. Rev. Stat. section 32-1154(A), within the time allowed by Ariz. Rev. Stat. section 32-1155(B).

8. Austen did not provide Mr. Palm with a contract that included the

estimated date of completion of all work to be performed under the contract, the dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner, and the dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. On or about January 13, 2021, Austen began work under the contract.

10. On or about April 28, 2021, Austen stopped work under the contract.

11. On or about May 3, 2021, Mr. Palm filed a complaint with the Registrar alleging poor work and abandonment on the part of Austen.

12. On May 20, 2021, Investigator Johndrow conducted a job-site inspection.

13. On May 24, 2021, the Registrar issued a Directive to Austen. The May 24, 2021 Directive provided, in relevant part, as follows:

................

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 June 22, 2021.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Respondent shall complete project per original contract agreement (s), properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Complaint Item 1: “960 sq feet of travertine installed incorrectly. Was not graded correctly and the tiles are uneven. Travertine was installed an inch away from the base of the house.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the installed section of Travertine pavers has a positive fall/grade directly towards the pool, the installed Travertine pavers have lippage conditions throughout and the installed Travertine pavers were not installed flush to the foundation of the residence in all areas.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 3a: “fireplace was not finished.”

Investigator’s Observation: Verified: The Respondent has failed to complete the fireplace.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 4: “contractor left neighbors side yard in dismay. Leftover concrete blobs all in the side yard and infringed on neighbors property. Contractor agreed to return the landscape to its natural state, this did not take place.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the material and debris stored and allowed to migrate onto the neighboring property by the Respondent. The Respondent acknowledged the conditions and stated both the neighboring property and the Complainant’s property will be returned to natural desert vegetation.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 5: “Contractor revered trailer into our 4 foot saguaro cactus. Verbally admitted the damage to both my wife and I. He agreed to purchase another cactus and would replace, this did not take place.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me the Cactus damage by the Respondent. The Respondent acknowledged the damage and state the cactus will be replaced.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 9: “Contractor failed to build a wall around our pool equipment as promised.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me no wall has been constructed around the pool equipment.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

...................

14. On June 1, 2021, Austen sent an e-mail to Ms. Palm and Investigator Johndrow. Austen notified Ms. Palm that he would begin corrective work pursuant to the Directive, beginning June 17, 2021. Austen notified Ms. Palm that the Jacuzzi needed to be removed.

15. On June 11, 2021, Austen sent an email to Investigator Johndrow alleging that Complainant refused to allow Austen access to Complainant’s rear yard. The June 11, 2021 e-mail provided in relevant part, as follows:

HELLO GREGORY .ON THURSDAY THE 6/10/21 I TEXTED ALICA PALM WE WILL BE ON SITE .I REQUESTED ACCESS TO REAR YARD WHILE WE WERE CLEANING UP SIDE YARD AND GOING TO INSTALL NEW CACTUS .WE NEEDED TO ASSESS TRAVERTINE TO BE FIXED . AFTER TWO HOURS OF ME AND MY CREW WE WERE MEET WITH ALICA BEHIND A LOCKED GATE AND HUSBAND BEHIND WITH VIDEO AND RECORDING .THEY WOULD NOT GIVE US ACCESS TO HELP REMEDY THESE PROBLEMS .IN FACT THEY WANTED US TO SIGN A CONTRACT .WE WERE ASKED TO LEAVE THE PROPERTY IMMEDIATELY OUR MY CREW AND I WILL BE ARRESTED FOR TRESSPASSING ! MY CREW AND I IMMEDIATELY PACKED UP AND LEFT. THIS HAS GOT VOLATILE AND GETTING DANGEROUS .MY CEW HAS BEEN VERBALLY ABUSED AND NOW THREATENED WITH ARREST. WE ARE CONCEREND ON FULFILLING THE DIRECTIVE WITH THESE PEOPLE .PLEASE ADVISE . PETER AUSTEN 520 400 1651 .

Errors in original.

16. On June 25, 2021, Investigator Johndrow conducted a job-site compliance inspection. Investigator Johndrow found that Austen had failed to comply with the Directive.

17. At hearing, Mr. and Ms. Palm asserted that Austen performed poor work during the construction project.

18. Ms. Palm explained that Austen failed to appear for work on June 17, 2021 as agreed. Ms. Palm stated that when Austen came to her home, he came unannounced without scheduling work. Mrs. Palm stated that Austen did not come to her home on June 17, 2021 and that Austen did not schedule any other time to perform corrective work. Ms. Palm denied that she threatened to call the police.

19. Investigator Johndrow testified regarding his investigation of the complaint and the issuance of the Directive. Investigator Johndrow stated that Austen notified him by e-mail on June 18, 2021 that he could not access Complainant’s backyard and that Complainant had threatened to call the police. Investigator Johndrow stated that Respondent stated in the e-mail that Complainant asked Austen to sign a contract.

A copy of the June 18, 2021 e-mail was not provided at hearing.

20. Investigator Johndrow explained Austen had violated A.R.S. § 32-1154(A) (12) because its contract did not comply with 32-1158(a) (4) and (a) (7) – (9). Investigator Johndrow explained that Austen operated beyond the scope of his CR-31 Masonry license when he agreed to install artificial turf at Complainant’s home. Investigator Johndrow explained that such an installation would have required a CR-21 Hardscape and Irrigation Systems License.

21. Mr. Deleplanque stated that Austen came to Complainant’s home twice to perform corrective work. Mr. Deleplanque stated that he and his workers arrived early one morning and performed about 3 – 4 hours of work on the side of Complainant’s home near their neighbor. Mr. Deleplanque could not recall the exact days that Austen and his employees came to Complainant’s home. Mr. Deleplanque stated that he did not have access to Complainant’s backyard when he arrived. Mr. Deleplanque stated that Mr. and Mrs. Palm called him and the other workers liars and threatened to call the police.

22. Mr. Deleplanque stated that Mr. and Mrs. Palm wanted him and the workers to sign a contract promising that they would not bring water and a radio to the worksite. Mr. Deleplanque stated that Mr. and Mrs. Palm threatened to charge him and the workers with trespassing and as a result, Mr. Deleplanque and the workers packed up their equipment and left Complainant’s home. Mr. Deleplanque stated that he notified Investigator Johndrow by e-mail of the dates that they were unable to access Complainant’s home. Mr. Deleplanque stated that Mr. and Mrs. Palm were “nasty” to him and the other workers.

23. Austen explained that people walked on the travertine while it was being installed. Austen stated that he wants to complete the job.

24. Administrative notice is taken of Austen’s disciplinary history as shown on the Registrar’s public website on September 20, 2021. Respondent’s license record shows that its licensed was issued on July 18, 2000 and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and of a civil penalty.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Austen’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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 section 5 (1960). Austen bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

The preponderance of the evidence shows that Austen did not perform

work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of Ariz. Rev. Stat. section 32-1154(A)(3).

4. The Administrative Law Judge may consider Registrar’s administrative

record. See A.A.C. section R4-9-118.

5. The undisputed evidence established that Austen’s contract did not

comply with Ariz. Rev. Stat. section 32-1158(A)(4) and (A)(7)-(9), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12).

6. The undisputed evidence established that Austen’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.

7. The preponderance of the evidence shows that Austen contracted

beyond the scope of its CR-31 Masonry license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16).

8. Respondent failed to establish that Complainant denied Austen access to Complainant’s home. The preponderance of the evidence shows that Austen failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 License No. 154692 of Peter Reginald Austen DBA: Austens Masonry, for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, September 20, 2021.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors