ALJDEC decisions subject to certification as final

2022A-05821-CHC-ROC · Registrar of Contractors · 2022-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carl Jessup,

COMPLAINANT

v.

Synthetic Grass Masters LLC

License No. ROC 316037,

RESPONDENT

No. 2022A-05821-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 3, 2022

APPEARANCES: Complainant Carl Jessup appeared and was represented by Richard Elley. Sina Ehteshami, Manager and Qualifying Party. appeared on behalf of Respondent Synthetic Grass Masters LLC, which was represented by Frederick Thomas.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Synthetic Grass Masters LLC (Respondent) is the holder of License No. 316037 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 6, 2022, Carl Jessup (Complainant) entered into a contract with Respondent for, among other things, the removal and installation of pavers and hardscaping and pool coping.

On or about July 20, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Doug Barrett. After a jobsite inspection, Investigator Barrett issued a written directive 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 08-31-2022.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 – 32 damaged interior pool tiles (HPT Safari Multi) due to careless removal of the adjacent travertine pool tiles and coping during demo phase of project.

Investigator’s Observation: Verified. I observed numerous chips on the top edge of the waterline tiles throughout the pool below the new row of tile that was installed. I also observed about three tiles that had chips in the surface of the tiles where the Complainant had them marked with tape. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 3 – Missing grout where spa waterline tile meets the underside of spa coping.

Investigator’s Observation: Verified. I observed there is no grout installed under the coping of the spa where the tile meets. Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 8 – Grout cracking where applied heavily between pool coping and pool boulders.

Investigator’s Observation: Verified. I observed the boulder to the right of the elevated deck. The grout around the top side is cracking and there is missing grout along the poolside of the boulder. The contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 10 – Several areas in backyard where there are gaps between artificial turf and adjacent hardscape (limestone pavers, perimeter walls, etc.)

Investigator’s Observation: Verified. I observed a spot behind the BBQ area where the turf was lifting next to the gravel. I observed a spot at the back left perimeter wall where the turf was lifting. I observed a spot by the pool equipment wall where the turf was lifting. As for the gaps pointed out by the Complainant at all hardscape throughout the yard, there is an allowable gap of 1/8” to prevent bunching. Contractor should correct the areas that are lifting by appropriate means and verify the gaping throughout does not exceed 1/8” at edges.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Compliance Item: 12 – Ground settling under artificial turf near backyard hose reel (area where large rock was removed and artificial turf added – not properly compacted prior to turf installation.)

Investigator’s Observation: Verified. I observed a dip that follows the path of the drainage pipe in front of the pool equipment wall under the artificial turf. Contractor should correct the dip/settlement by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108

Following the issuance of the written directive, Respondent performed some corrective work on the turf. Respondent attempted to reach a financial settlement with Complainant regarding the tile in and around the pool, but the parties were unable to reach an agreement. After the deadline in the directive expired, Investigator Barrett was notified some corrective work had been performed.

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); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

Investigator Barrett testified that the work Respondent did in the pool, specifically replacing the top layer of tile, was beyond the scope of Respondent’s license. With respect to the items identified in the written directive, Investigator Barrett noted that during his compliance inspection, Respondent had not done any work on items 1, 3, and 8 as those were outside the scope of Respondent’s license. As to item 10, Investigator Barrett noted that Respondent had completed the repair work to the turf behind the BBQ area and the perimeter wall, but had missed the turf in the pool equipment area. Investigator Barrett observed that, while the dip in Item 12 had been corrected, there were gaps behind the border.

Complainant testified that he entered into a contract with Respondent for an initial cost of $61,758.90 with an addendum contract of $16,623.64. Complainant indicated he had paid a total of $77,209.08 toward the contract. Complainant stated that he had the pool refinished prior to Respondent’s work and the damage Respondent did to the existing tile was not acceptable. Complainant testified that Respondent’s proposed fix included using a different color grout where the damaged tiles would be replaced because it was not possible to match grout colors. Complainant wanted his pool to look like it was before Respondent damaged the tile, so he did not agree with the proposal of a financial settlement to perform that work.

Kayne Zamorano, principle for Premier Poolscapes, testified that he was contacted by Respondent about the possibility of performing the corrective work on Complainant’s pool. Mr. Zamorano admitted that he had not personally viewed Complainant’s pool, but received video from Respondent. Mr. Zamorano stated that his proposal would not be visible to the naked eye as a patch. Mr. Zamorano indicated that Respondent proposed hiring Premier Poolscapes to perform the corrective work.

Respondent argued that Complainant’s refusal to allow Premier Poolscapes to perform the corrective work constituted a denial of access.

Administrative notice is taken of Respondent’s prior License record on November 18, 2022. Such prior License record reflects that Respondent’s License No. 316037 was first issued on May 1, 2018, and is active. Such prior License record also reflects that there were no other open or prior 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 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).

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(A).

The evidence established that Respondent performed work outside the scope of its license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. Complainant’s refusal to accept a financial agreement with respect to the work that Respondent performed beyond the scope of its license did not constitute a denial of access as Complainant could not be compelled to accept such an agreement. 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. 316037 for a period of three 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, November 21, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Doug Barrett

[email redacted]

Richard D. Elley, Esq.

ELLEY LAW PLC

[email redacted]

[email redacted]

Frederick C. Thomas Esq.

Thomas Law PLLC

[email redacted]

By-54864001

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-137160-45720000 Miranda Alvarez

Legal Secretary