ALJDEC decisions subject to certification as final

2022A-04122-CHC-ROC · Registrar of Contractors · 2022-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mary Clinger,

COMPLAINANT

Lavender Landscape Design Co LLC

License No. ROC 334560,

RESPONDENT

No. 2022A-04122-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 31, 2022

APPEARANCES: Complainant Mary Clinger appeared via Google Meet on her own behalf. Taylor Tew appeared via Google Meet on behalf of Respondent Lavender Landscape Design Co LLC. Jason Simpson, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Valley Rain Pools & Landscape LLC (Respondent) is the holder of License No. 334560 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 6, 2021, Mary Clinger (Complainant) signed a contract with Respondent for renovation of her backyard. The contract amount was for $113,442.52.

On or about May 21, 2022, the Registrar received a Complaint containing twenty-three items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jason Simpson. The jobsite inspection was performed on July 21, 2022.

Investigator Simpson then issued a written directive on or about August 5, 2022, 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 August 23, 2022.

RESTRICTIONS

• Before the start of work permits needed must be obtained and final inspection.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 8: “Grill and all specs were provided months in advance (visually every visit, emailed Sept 2021), only on installation day did they decide it doesn't work - even employees (Adam) came to visit site prior to beginning construction and had no issues with the grill.”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should make proper repairs per the contractual and plan drawling agreement.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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: “Tiles do not match on counter and was yelled at they would warranty if they put it the way i wanted”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent.

Reference Pictures:

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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. Observed a tile was a different size than the rest. Contractor should make necessary repairs.

Complaint Item 10: “Flower boxes are falling apart”

Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Contractor should determine the cause and make proper repairs.

Reference Pictures:

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): 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.

(All errors contained in the original)

On September 1, 2022, 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.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about September 2, 2022, Respondent e-mailed an Answer to the Registrar.

On or about September 23, 2022, a Notice of Hearing was issued setting a hearing on October 31, 2022, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Simpson testified as to his involvement and the above timeline.

Investigator Simpson testified that there were two representatives from Respondent at the jobsite inspection.

In addition, Investigator Simpson testified that a compliance inspection was not performed as Complainant informed him that Respondent had not made any of the corrections.

As to the Directive items, Investigator Simpson testified that the grill had not been properly installed as agreed, the tile was a different size as the rest on the countertop, and the flower boxes were falling apart.

Investigator Simpson further testified that he received an e-mail from Respondent on August 5, 2022, that she would be setting up a time to complete the corrective work.

As to the issue with regard to the contract, Investigator Simpson testified that the contract failed to indicate the Respondent’s license number, the Registrar’s information and the estimated completion date.

Finally, Investigator Simpson testified that he contacted Complainant on the morning of the hearing, to confirm there was no further work on the property, and she affirmed the same.

Complainant testified on her own behalf and submitted three exhibits into evidence.

Complainant testified that the whole project was supposed to be done around the grill which she purchased in January 2021. She testified that everyone knew that it was her specific grill she wanted installed and Respondent’s representatives were to create plans built around the same. She testified that to date, the grill still did not fit.

Complainant also testified that the tile overhang still has yet to be repaired.

As to the planter boxes, they were holding water against the house due to the poor workmanship.

Finally, Complainant testified that she was never contacted by Respondent once the Directive was issued in August, thus the items still remain as how they were during the jobsite inspection.

Brian Thompson and Taylor Tew testified on behalf of Respondent. Mr. Thompson testified that the grill itself was supposed to be a “drop-in grill”, but a stand-alone grill with wheels was provided. He testified that he would be willing to re-block the front if Complainant purchased a new drop in grill. Mr. Tew testified that Respondent was told to build the structure based upon a grill that Complainant had already purchased, but the previous designer made plans based upon a drop-in grill. Mr. Tew testified that it was an out of the ordinary installation for them, so they did the best they could to their ability.

As to the travertine tile, Mr. Tew testified that the tile itself came in a 12x12 size, so it had to hang over by two inches because if he made it thinner or thicker, the tile might fall off because there was not enough grout to safely hold up.

As to the planter boxes, Mr. Tew testified that the wood may have warped and offered to repair the same.

Mr. Tew also testified that he was not allowed back on the property and acknowledged that no one reached out to Complainant once the Directive was issued to schedule the corrective work.

Mr. Tew also testified that he and other of Respondent’s representatives had sent multiple e-mails and texts to Complainant without responses thereto, and the last communication to Complainant was June 8, 2022.

Finally, Mr. Tew testified that he was never given the opportunity to make the repairs and should have an opportunity to fix the job.

Administrative notice is taken of Respondent’s prior License record on November 14, 2022. Such prior License record reflects that Respondent’s License No. 334560 was first issued on August 23, 2021, and reflects that there is 1 open complaint, namely 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.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

As to the contract issue, the preponderance of the evidence established that the contract did not meet all of the elements of a contract because it did not contain, an estimated date of completion nor the Registrar’s information. Therefore, Respondent is in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. All parties knew that Complainant had a grill which she wanted everything built around, and the evidence demonstrated that it still did not fit correctly. Mr. Tew even admitted the same as he testified that they tried their best to make the design work with the grill. As to the tile, again Mr. Tew admitted that there was no good way to make the tile look correct. Finally, the evidence demonstrated that the flower boxes were falling apart and the workmanship was poor. 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 the Respondent failed to complete the corrective work following the Directive being issued. The tribunal disagrees with Mr. Tew’s assertion that Respondent was not given an opportunity to make the repairs, and that is what the Written Directive expressly provided. Further, Mr. Tew admitted that he did not attempt to contact Complainant between August 5 and August 23, 2022 to schedule a time for repair. Had he done so, and then Complainant refused to allow the repairs to be made, this would be a valid defense. However, no evidence was presented that this occurred. 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. 334560 for a period of seven days.

It is further recommended that the Registrar require Respondent to pay the sum of $400.00 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.

It is further recommended that Respondent provide an updated contract containing all of the elements listed in A.R.S. § 32-1158, to the Registrar within thirty days. If Respondent failed to provide the same, its license shall be suspended until it has complied with the order.

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.

-54864001

001

-137160-45720000Done this day, November 14, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Mary Clinger

2216 E Encanto St

Mesa, AZ 85213

[email redacted]

Lavender Landscape Design Co LLC

602 W 22nd St

Tempe, AZ 85282

[email redacted]

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000