ALJDEC decisions subject to certification as final
2021A-03461-CHC-ROC · Registrar of Contractors · 2022-01-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kathleen Sue Ryan ,
COMPLAINANT
v.
M & M Landscape Management Inc
License No. ROC 329014,
RESPONDENT
No. 2021A-03461-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 15, 2021
APPEARANCES: Kathleen Sue Ryan “(Complainant”) appeared. Qualifying Party Kyle J. Morrison represented M&M Landscape Management Inc (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
Respondent is the holder of License No. 329014, B General Residential Contractor, issued by the Arizona Registrar of Contractors (“Registrar”) in May 2020.
On or about July 23, 2021, the Registrar received Complainant’s Licensed Complaint Form (“Complaint”) containing a 16-item list of complaints regarding construction issues and various landscaping work issues. Complainant gave two possible contract dates: February 1, 2021 “or” January 8, 2021; the same two dates were indicated to have been when the work started.
On August 17, 2021, Registrar’s Investigator Bob Mcquien conducted a jobsite inspection and thereafter issued a Written Directive (“Directive”), dated August 19, 2021, directing that corrective action was necessary as to the noted nine (9) items. The Registrar set September 9, 2021 as the deadline for Respondent’s compliance with the Directive. Investigator Mcquien was unaware of any Registrar-granted extensions to the deadline.
The Directive set forth issues with the following Complaint items:
Item #2. Electrical panel having been pulled away from the wall and [despite a repair] still having electrical outage issues in the bathroom.
Item #3. Snapped pole on side fence.
Item #4. Broken cement blocks and wires on back fence.
Item #6. Cracked front porch.
Item #7. Palm tree “root” not removed.
Item #8. Damage to fence along driveway.
Item #10. One drain installed by casing broken and the other drain not installed.
Item #13. Damaged patio roof leaving a hole.
Item #16. Straw waddles not placed on the mountain.
Following a compliance inspection on September 29, 2021, Investigator Mcquien determined that all Directive items remained uncorrected.
On October 1, 2021, the Registrar issued its Citation charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(22) and Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108.
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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 Registrar noticed the matter for hearing.
At hearing, Complainant indicated that she had given Respondent her “original list” of items that she wanted to have done but she had not retained a copy of the list. Complainant indicated that the agreed upon charge was to be $12,000.00 and that, as the job proceeded, she paid him various amounts.
Complainant disagreed with Investigator Mcquien as to her Complaint Item #1, regarding repair of erosion on the slope of the mountain. She indicated that Respondent was to have repaired some areas with additional rock and her Complaint stated that, with the first rain, the “top of mountain tumbled to bottom after their repair of mountain erosion.”
Additionally, as Item #15, “gravel” and its placement, Complainant argued that Respondent had told her he would give her some as being, in her words, “included” in the cost of the project but that then she had to pay more to get gravel for the whole area and that, even after she paid him $300.00 to spread it, he had abandoned the project and they had to rent a back hoe and spread it themselves.
Complainant indicated that, in October of 2021, some workers came to her property, purportedly to do some of the corrective work and, because she was uncomfortable with them being there after Respondent had, in her words, “demanded” more money,” she had asked them to leave.
Respondent indicated that this was a “handshake”’ project and there are now discrepancies in their respective positions and how each had approached, or discussed, the various portions of work which itself changed as the project was underway. Respondent indicated that he, in fact, had that “original” list. Respondent opined that he should not have agreed to take on this project because Complainant really had not had the budget, especially to engineer and repair the mountain erosion. Overall, Respondent indicated that there was no written contract and that he had tried to continue to work in good faith on the project on many items simply to please the Complainant and maintain a good relationship.
Regarding Item #2, the electrical panel issue, Respondent agreed that the panel had been pulled away from the wall accidentally but that he also had a licensed electrical contractor out there to fix the panel within 72 hours. Respondent testified that there is power to the bathroom and that, at the time of the initial repair, everything had worked but one light.
As to Item #6, Respondent acknowledged that his equipment had accidentally driven over the “aged and settling” front porch and that, although they could not determine if they had caused any new cracks, he had undertaken some work in response in good faith, such as taking out the sidewalk and putting in patio pavers.
As to Item #7, Respondent indicated that he had no idea that this was an issue with Complainant until the Complaint was filed. Respondent indicated that there had not been an agreement to remove the palm tree but only to trim it “if they could.”
As to Item #10, Respondent argued that drainage work was not a part of the project and that he did not recall any discussion of such work to be completed.
Regarding Item #15, “decorative rock”, Respondent testified that decorative rock was not a part of the contract and Complainant did not have more money for such a project but that he had agreed to give her some rock which he already had and that he gave her the name of his wholesaler for her to be able to buy more rock. Respondent felt that Complainant simply had expected him to spread the rock because he was on the project there and acknowledged that he had told Complainant “$350 or so” to spread the rock.
Respondent argued that some of the problems exist now due to the accidentally-damaged items, such as the side fence and back fence, being old and having existing age-issues, which cannot be fixed other than with Band-Aids.
Respondent argued that his crew was not allowed to come back on to the property to fix these issues. Respondent emailed the Registrar on October 20, 2021 complaining that Complainant was denying access. In that email, Respondent noted that they had “made several attempts during the weeks of September 13-22nd 2021 with a full crew” and had been ordered off the property.
While some remediating work was done by Respondent as the project was in progress and prior to the Complaint, the hearing record does not demonstrate completion of all of the Directive corrective work. Further, the hearing record does not demonstrate any extension of the Directive deadline and, thus, does not demonstrate any failure by Complainant to allow access.
Based on the hearing record, Respondent failed to complete all corrective action as had determined was required by Investigator Mcquien, pursuant to the Directive, by the September 9, 2021 date. Therefore, Respondent violated Ariz. Rev. Stat. § 32-1154(A)(22).
Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this is the only case open regarding Respondent; the Registrar’s record does not show any discipline on the license as of the date of this recommended decision.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
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 section R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section 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.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
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).
5. 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.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. 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).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding the Complaint, Investigator Mcquien found several Directive items remained unaddressed at the time of the September 29, 2021 compliance inspection. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner, and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 329014 as follows:
(a) a two business-day suspension on the effective date of the Registrar’s Order in this matter.
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.
Recommended this date, January 10, 2022.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors