ALJDEC decisions subject to certification as final
2021A-03430-CHC-ROC · Registrar of Contractors · 2022-03-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Janice C Ervin,
COMPLAINANT
v.
New Envision Landscape and Construction LLC.
License No. ROC 334098,
RESPONDENT
No. 2021A-03430-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 16, 2022
APPEARANCES: Complainant Janice Ervin appeared on her own behalf. Registrar of Contractors Investigator Wes Ellington appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
New Envision Landscape and Construction LLC. (Respondent) is the holder of License No. 334098 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 15, 2021 Janice Ervin (Complainant) agreed to have Respondent remodel her backyard. The total cost was to be $13,581.00.
On or about July 16, 2021, the Registrar received a Complaint containing nine items against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection was performed on August 17, 2021.
Investigator Ellington then issued a written directive on or about August 20, 2021, to Respondent that provided 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 September 9, 2021.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 3: Replace pavers on pool deck. Was replaced w/broken pavers. shoddy work. Not completed.
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means. There are broken pavers, excessive lippage (no more than 1/8” in height between pavers), and excessive gaps between the pavers (no more than 3/16”) as well as not being level (with surrounding pavers) with proper drainage slope.
The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 5: Cement pads and sidewalk. Not done correctly, grade is wrong. Can't use my walker finish is so rough.
Investigator’s Observation: Verified. Sidewalks and pad have poor finish. Some areas appear to be broomed too early causing rough appearance. Sidewalks have unfinished, rough appearance in many areas. In general, all poured concrete has improper, inadequate, unsightly finishing. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 6: Cement pads were for BBQ grill/pool storage box, but resembles a boat ramp, not flat. Not completed.
Investigator’s Observation: Verified. There is an excessive grade on these pads.
Using this for a grill or storage box would not be practical. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 7: Remove cement overspray from fences, house/patio pavers and orange spray paint on fence.
Investigator’s Observation: Verified. There is spilled concrete on stem walls, pavers, fence. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 8: Washed cement tools onto the neighbor’s property and newly painted house.
Investigator’s Observation: Verified. Dried concrete stains are apparent in this area. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 9: Cement washed all over our paver sidewalk and gravel between neighbor & our property.
Investigator’s Observation: Verified. The Respondent will need to correct this by the appropriate means.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
(All errors contained in the original)
On September 22, 2021, Investigator Ellington conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Ellington found that only Directive Item 3 was completed.
On September 24, 2021, 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).
On October 5, 2021, Respondent filed an Answer with the Registrar, denying the allegations.
On or about October 20, 2021, a Notice of Hearing was issued setting a hearing on December 3, 2021 at the Office of Administrative Hearings, an independent state agency.
After several continuances, a hearing was scheduled for March 16, 2022.
On March 9, 2021, Respondent, through counsel, filed a Notice of No-Contest, notifying the Tribunal of its intent to withdraw its opposition to the Complaint and to not appear at the hearing.
At hearing, Investigator Ellington testified as to the Registrar’s involvement and the above timeline.
Investigator Ellington also testified that there was a one day extension on the Directive, and he believed that it was enough time to complete the corrective work.
Investigator Ellington testified further, that there was no denial of access by Complainant. Rather, Respondent would just randomly show up at the jobsite without any advance notice.
Janice Ervin testified on her own behalf and one exhibit was offered into evidence. She testified that this project has left her very frustrated as the purpose of the project was to make her backyard more accessible since her neck surgery.
Ms. Ervin testified that her grandson worked for Respondent, so she placed her trust that the project would done by July 4, 2021 as promised, and everything would be what she expected.
Ms. Ervin testified that the work was not satisfactory and re-iterated the findings of Investigator Ellington. She was most concerned about the grading, as she used a walker to move around the backyard and does not want to fall. Further, the cement pad where the BBQ grill was to go, looked like a “boat ramp” as it was way out of level.
In addition, Ms. Ervin testified that the workers would randomly show up with little to no notice. Further, after the Directive was issued, Respondent contacted Ms. Ervin on August 25 to schedule the concrete demolition for August 28. While that was completed, the next time work was performed was on September 8. On September 13, Respondent’s crew worked approximately 2 hours, and on September 17, the worked another 5 hours. Ms. Ervin testified that to date, the work was incomplete.
Ms. Ervin testified that she received a quote from Premier Paradise Inc. in the amount of $9,901.00, to finish and correct the backyard.
Finally, Ms. Ervin requested that Respondent’s license should be revoked.
Administrative notice is taken of Respondent’s prior License record on March 28, 2022. Such prior License record reflects that Respondent’s License No. 334098 was first issued on July 21, 2021, and reflects that there were four open complaints, which include the present complaint.
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 Vazzano 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.” Ellington K. Udall, Arizona Law of Evidence § 5 (1960).
The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The pavers on the pool deck were broken, had excessive lippage and gaps; the sidewalks and cement pads had a poor finish as they had a rough finish; there was an excessive grade on the BBQ grill area; there was cement overspray; and there were dried concrete stains in the area and on the neighbor’s property. 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 Respondent failed to fully complete the corrective work following the Directive being issued. Although a one day extension was given, in reality, Respondent had an additional week after that extension was given prior to the compliance inspection, thus, there was no excuse for not completing the work. 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. 334098 for a period of thirty 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.
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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 30 days from the date of that certification.
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-137160-45720000Done this day, March 28, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By: Miranda Alvarez
Legal Secretary