ALJDEC decisions subject to certification as final

2021A-02675-CHC-ROC · Registrar of Contractors · 2021-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Esther Slater Browning,

COMPLAINANT

Ferraro Landscaping, LLC

License No. ROC 235040,

RESPONDENT

No. 2021A-02675-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 26, 2021

APPEARANCES: Complainant Esther Slater Browning appeared on her own behalf. Susan Ferraro appeared on behalf of Respondent Ferraro Landscaping, LLC. Investigator Lisa Melton was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Ferraro Landscaping, LLC (“Respondent”) is the holder of License No. 235040 issued by the Arizona Registrar of Contractors (“Registrar”). Susan Ferraro is Respondent’s qualifying party.

Esther Slater Browning (“Complainant”) contracted with Respondent for Respondent to perform landscape work including the installation of synthetic turf at Complainant’s residence.

On or about June 10, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work and financial disputes with respect to the project.

The Registrar assigned the Complaint to Investigator Lisa Melton. After a July 28, 2021 jobsite inspection, Investigator Melton issued a Written Directive to Respondent that provided in pertinent 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 August 17, 2021.

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

Compliance Item 6: Substandard work: edges of turf buckling, sand showing, seam showing.

Investigator’s Observation: At the time of the inspection the seam is still visible.

Respondent should correct this condition by appropriate methods.

Governing Rule: ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item 1: Original bid is $12,533.00, paid to date- $13,500.00

$967. over

Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.

Compliance Item 2: Only changes were 5 plants added-$350.00, additional turf- $437.50 ($787.50)

Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.

Compliance Item 3: Multiple invoices of differing amounts sent to me.

Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.

Compliance Item 4: Contractor sent invoice for $1940.50. and email asking for $400. in addition to that.

Investigator’s Observation: Not a workmanship issue that can be inspected and/or evaluated.

Compliance Item 5: Contractor will not finish, plant 2 citrus, until I give

her additional money. She will not clarify why she thinks I owe her more. (responded 6-11-2021)

Investigator’s Observation: Estimate includes citrus, however, in their statement to the Registrar, Complainant acknowledged three changes in items: “additional synthetic turf”, “change of 1 plant” and “adding 5 plants”. The evidence obtained in not sufficient to confirm that the trees remain part of the contract. This is a financial matter outside of the authority of the Registrar.

Compliance Item 7: Grass showing through granite where it wasn’t removed properly.

Investigator’s Observation: The Registrar no longer issues citations in regard to vegetation. The license classification contains no reference to vegetation.

Compliance Item 8: Job not completed.

Investigator’s Observation: I was shown two exposed irrigation lines. One of the lines is for the lemon trees which have not been installed due to financial dispute. The other has no current purpose and was covered up by the Respondent at the time of the inspection.

All errors in original.

Following the issuance of the Written Directive and on the deadline specified in the Written Directive, Investigator Melton was notified by Complainant that Respondent did not perform the required corrective work. Investigator Melton referred the matter to the Registrar’s Legal Department.

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).

Investigator Melton testified consistently with the findings contained in the Written Directive with regard to the item of Complaint that was verified, as well as with regard to the items of Complaint that were not verified. Investigator Melton testified specifically with regard to the item of Complaint that Respondent was ordered to correct, that at the jobsite inspection, Respondent contended that the seam was not Respondent’s responsibility because Respondent’s subcontractor performed the work. Investigator Melton testified that because Respondent was the contractor that bid, contracted and received payment for the project, Respondent is responsible for the work.

Complainant testified that Respondent has not complied with the Written Directive and has not contacted her.

Ms. Ferraro asserted that she “misunderstood” the Written Directive requirements. Ms. Ferraro testified that Complainant is comparing her project to that of her neighbor’s and that the “quality is different,” a different material was used, and a different company performed the work. Ms. Ferraro testified that Respondent “tried to make corrections,” however, “the guys created another problem when making corrections,” and approximately one month later is when the seam developed. Ms. Ferraro asserted that the project is covered under her installer’s (Respondent’s subcontractor) warranty, and that the subcontractor should repair the seam. Ms. Ferraro testified that she has contacted the installer on a weekly basis in an attempt to have the repair performed, and wants the installer to honor its warranty. Ms. Ferraro testified that she has offered to make the repair, however, cannot provide Complainant with a time frame in which the repair will be performed because Respondent is waiting for the installer to respond.

Administrative notice is taken of Respondent’s prior License record on November 5, 2021. Such prior License record reflects that Respondent’s License No. 235040 was first issued on July 11, 2007, and is active. Such prior License record also reflects that there is only the instant open complaint, zero complaints resulting in discipline, and zero resolved/settled 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. 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 evidence established that Respondent did not compete the corrective work following the Written 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. 235040 for a period of three (3) 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)(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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, November 10, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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