ALJDEC decisions subject to certification as final

2021A-06107-CHC-ROC · Registrar of Contractors · 2022-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robin Williams

COMPLAINANT,

Soler Enterprises LLC

License No. ROC 327106,

RESPONDENT.

No. 2021A-06107-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 14, 2022

APPEARANCES: Complainant Robin Williams appeared on behalf of herself. Shane Peterson, Esq. appeared on behalf of Respondent Soler Enterprises, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On or about September 28, 2021, Respondent Soler Enterprises, LLC (Soler)

agreed to perform residential landscaping at the home of Complainant Robin Williams. Jose Soler is the qualifying party for Soler.

On September 28, 2021, Soler started work.

On October 13, 2021, Soler stopped work.

On or about November 29, 2021, the Arizona Registrar of Contractors (ROC)

received a complaint from Ms. Williams alleging poor work on the part of Soler.

On December 27, 2021, ROC Investigator Wes Ellington conducted a job-site

inspection.

On February 3, 2022, the ROC issued a Directive to Soler. The Directive provided, in relevant part, as follows:

Complaint Item: 1. Drainage channels on West side of lot were not installed as agreed but cost was not reimbursed.

Investigator’s Observation: Verified. The drain mentioned in the contract has not been installed. The Respondent shall complete this part of the project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: ARS § 32-1154(A) 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 ARS § 32-1158.01(C), Any changes, additions or deletions to the work specified in the original contract shall be included in a written change order.

Complaint Item: 3. Modified spigot on S/E corner of house does not have back flow prevention and does not match the water supply from the front of the house.

Investigator’s Observation: Verified. The town of Queen Creek requires this water line to have a backflow prevention system. 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.

Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Complaint Item: 5. All electrical conduit is not to code and is visible at the surface and was pigtailed off a pre-existing external GFCI backyard circuit that is already at (5) receptacles.

Investigator’s Observation: Verified. This added extension to the exterior receptacle was installed without consideration of the additional load to the circuit. The extension box has loose connections, the conduit is not properly buried 18” or

permitted as required by the town of Queen Creek. The Respondent will need to remove this addition to the circuit, obtain the required permit, and reconfigure/reinstall per local building code.

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. Footing of block wall dimensions are not large enough for the height of the block wall.

Investigator’s Observation: Verified. The town of Queen Creek requires a footing for this block wall style to be 24” wide and 8” deep. The complainant exposed enough of the footing to show it is nowhere near the required width and depth. 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. Pavers do not have a consistent slope away from door thresholds. Water pools everywhere.

Investigator’s Observation: Verified. Water pools in several areas and should maintain a 2% grade away from the house as per building code. Additionally, ROC workmanship standards for this issue are as follows:

Ponding or standing water on garages, patios, stoops, carports, walks and driveway surfaces:

Water should drain. Standing water exceeding 3/32” is unacceptable. Standing water exceeding 3/16” on driveways is unacceptable. Flood, wait 30 minutes and check for ponding.

Contractor should make necessary repairs.

Pavers interfere with drainage:

Pavers should not interfere with drainage.

Contractor should correct as necessary.

Uneven or wavy pavers:

Excessive deviations, dips or sags over short distances are considered unacceptable.

Contractor should make necessary repairs.

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. Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material

respect that is prejudicial to another.

Complaint Item: 9. Compaction for sub base of pavers has failed resulting in pavers to be uneven and sinking on side yard, patio and courtyard.

Investigator’s Observation: Verified. There are multiple areas where pavers fail to meet minimum workmanship standards. Current ROC workmanship standards for

these issues are as follows:

Settling or heaving of stoops or steps:

Settling or heaving more than 1⁄4” is unacceptable.

Contractor should make necessary repairs.

Excessive gap between pavers in field and at edges:

No gaps should exceed 3/8” at the edge of the pavers. Joint widths between the pavers in the field should be between 1/16" and 3/16 at the base of the 17 pavers

(tumbled pavers may have a gap appearing larger from the top) with a gap greater than 3/16” in the field should be taken up and relayed tight.

The elevation of two adjacent pavers is not the same:

There should be no more than 1/8” difference in height between adjacent pavers.

Contractor shall make necessary repairs. If not extreme, re-compaction of the area may repair the problem.

Uneven or wavy pavers:

Excessive deviations, dips or sags over short distances are considered unacceptable.

Contractor should make necessary repairs.

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: 10. Block wall is not installed correctly and is not level.

Investigator’s Observation: Verified. The block wall is not plumb or level. The

mortar joints are of inconsistent width, have voids, and have a poor appearance. The courses that have open areas for an aesthetic appearance are not supported on one side by the course below. Additionally, the Respondent’s license as well as the local building code does not allow for fences that exceed 6’. Current ROC workmanship standards for these issues are as follows:

Crooked, out-of-plumb, out-of-level masonry walls:

1/4" out of plumb, 1/2" in total length of wall out of level not to exceed 1/4" in 8'.

Contractor should make necessary repairs.

Uneven surface of masonry walls:

Walls should be free of protruding or sunken blocks or bricks, unless called for in plans and specifications.

Contractor should make necessary repairs.

Voids in mortar joints:

Voids in masonry mortar joints 1/4" or less are acceptable unless they are excessive.

Contractor should make necessary repairs.

Mortar joints not straight, plumb or varies in thickness:

Mortar joints should be straight and plumb (within 3/16" in adjacent courses) and of uniform thickness unless otherwise specified or detailed on plans. (Note: The bed joint may vary from these standards to compensate for irregularities in the stem wall or footing as allowed by the U.B.C.). CR Contractor should make necessary repairs.

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. Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A

building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

The following is an addendum item from the AJSI conducted on 1/19/2022:

Complaint Item: A11. Water leak associated with the additional copper pipe that was installed by Jurassic Landscape & Hardscape (ROC #327106) on the spigot

located on the Southeast corner of the house.

Investigator’s Observation: The Complainant exposed a large section of the water line for inspection purposes. While no leak was found, other code violations were

discovered. The water line is buried only 2” deep (minimum 12” required), is partially constructed with materials not approved for water lines (conduit for electric wire).

Additionally, the water line would require a building permit (not obtained). There Respondent will remove the water line, obtain the required permits and reinstall the water line as per local building code.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

The deadline to comply with the Directive was extended several times. The

final deadline was April 15, 2022.

On April 27, 2022, Investigator Ellington conducted a compliance inspection.

Investigator Ellington concluded that complaint items 1, 5, 8, 9, and 10 had not been corrected. Investigator Ellington concluded that complaint items 3, 6, and 11 were appropriately corrected.

On May 5, 2022, the ROC issued a Citation against Soler’s license. Through

the Citation, the ROC alleged that Soler violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22) and Arizona Administrative Code (A.A.C.) R4-9-108(a).

Soler filed a timely response to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing. A hearing was held on July 14 2022.

Investigator Ellington testified regarding his investigation of the complaint.

Investigator Ellington stated that he did not perform a 30 minute flooding test in connection with complaint item #8. However, Investigator Ellington stated that Soler performed poor work because he did not find that the water pools maintained a 2% grade away from the house as per building code.

At hearing, Ms. Williams testified on behalf of herself. Ms. Williams explained

that Soler performed poor work in connection with the landscaping project.

Mr. Soler testified on behalf of Soler. Mr. Soler did not dispute that Soler

performed poor work during the landscaping project. Mr. Soler testified that Ms. Williams made it difficult to complete repairs at her home.

The Administrative Law Judge finds the testimony of Investigator Ellington to

be credible.

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 Respondent’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, 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)

3. The Administrative Law Judge may consider the ROC’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent failed to correct the Directive items 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 Soler Enterprises LLC License No. ROC 327106 for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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, July 14, 2022.

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

By Miranda Alvarez

Legal Secretary