ALJDEC - Licensing

2022A-07361-CHC-ROC · Registrar of Contractors · 2023-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Theresa DuBois ,

COMPLAINANT

v.

Creative Outdoor LLC

License No. ROC 183054,

RESPONDENT

No. 2022A-07361-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 28, 2023

APPEARANCES: Theresa Dubois appeared on her own behalf along with her husband David Dubois. Travis Hill appeared on behalf of Respondent, Creative Outdoor LLC. David DeBorde, Kristen DeBorde, Broderick DeBorde, and Cody Gaines were witnesses on behalf of Respondent. Investigator David Thomas appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Creative Outdoor LLC (Respondent) is the holder of License No. 183054 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 28, 2021, Theresa DuBois (Complainant) entered into a contract with Respondent for, among other things, the design and installation of landscaping.

On or about August 29, 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 David Thomas. After a jobsite inspection, Investigator Thomas 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 April 7th 2023.

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 reasons1, 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: 2 - The following has not been completed in the Small Yard

1) Plant hedge along divider fence, 5 gal Red tipped photinia approximately every four feet. 10 plants. Client response: not planted due to no irrigation installed and the toxicity of Photinis Plants

Investigator’s Observation: This complaint item is verified. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. The time line on this project has exceeded what would be generally acceptable by professional industry standards. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Install galvanized wire for gophers, import soil for seed base, rake out for shape and contour. - Client response: Not started

Investigator’s Observation: This complaint item is verified. No wire observed at time of jobsite inspection. wire listed in contract. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Hydroseed application of fescue blend grass. – Client Response: Not started

Investigator’s Observation: This complaint item is verified. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. Respondent's written statement stating reseeding application was scheduled but canceled after work stoppage. The time line on this project has exceeded what would be generally acceptable by professional industry standards Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Sprinklers and drip small yard area. - Client Response: Drip system is in place, not hooked up and no other sprinklers or irrigation

Investigator’s Observation: This complaint item is verified. During the jobsite inspection, 1/2 inch black drip line visible but did not appear to be operational or any sprinklers as stated in estimate/contact.. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. The time line on this project has exceeded what would be generally acceptable by professional industry standards Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Paver brick edger along hedges. - Client Response: Not completed - verbal agreement edger would go along side the house so the project would look completed.

Gravel over fabric in hedge planters side yard. - Client Response: Not completed

Investigator’s Observation: This complaint item is verified. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Remove railroad ties and build Versalok retaining wall extended out further from house, making patio 18 x 27 size. Pavers to finish on top of wall, no wall cap on patio. Client Response: Railroad ties were thrown into the side yard, still there. Patio has not been sealed.

Investigator’s Observation: This complaint item is verified. Retaining wall not completed as per contract. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. The time line on this project has exceeded what would be generally acceptable by professional industry standards. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 11 - Small wall going from patio along concrete to begriming of dg path to gate will have cap.Client Response: Not completed (wall going east is suppose to be completed with pavers; wall west still need caps

Investigator’s Observation: This complaint item is verified. Retaining wall not completed as per contract. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. The time line on this project has exceeded what would be generally acceptable by professional industry standards. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 13 - Install AB and compact, cover with dg. – Client Response: Fabric showing; no DG Install AB and compact, cover with dg, no paver borders, path to chicken coop from rear patio area. - Client Response: Fabric showing no DG

Investigator’s Observation: This complaint item is verified. Walkway has fabric showing and no DG visible as per contract. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. The time line on this project has exceeded what would be generally acceptable by professional industry standards. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 20 - Install paver border set in mortar for grass –Client Response: completed

Investigator’s Observation: This complaint item is verified. Pavers installed but some have come loose from mortar bed. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 30 - Installation of sprinklers and drip in backyard. Client Response: Completed

Investigator’s Observation: This complaint item is verified. Irrigation tubing installed but no visible sprinklers or drip emitters visible. Respondent shall complete project per original contract agreement, properly executed change orders and local building codes. Respondent shall perform work in a timely fashion as agreed upon. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

All errors in original.

Following the issuance of the written directive, March 6, 2023. After the deadline in the directive expired, Investigator Thomas was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator David Thomas testified consistently with his jobsite inspection notes, written directive, and compliance jobsite inspection notes.

Complainant testified consistently with Investigator Thomas’ jobsite inspection notes, written directive, and compliance jobsite inspection notes.

Respondent’s witnesses testified consistently with Investigator Thomas’ jobsite inspection notes, written directive, and compliance jobsite inspection notes. Mr. David Deborde admitted that by the time the compliance deadline had passed, the debris Investigator Thomas identified at the jobsite inspection was to be removed from Complainant’s property. Mr. Deborde further admitted it was not until two days after the deadline expired that the debris was removed from Complainant’s property.

Administrative notice is taken of Respondent’s License record on August 16, 2023. Such prior License record reflects that Respondent’s License No. 183054 was first issued on March 8, 2003, and is active. Such 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.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Here, Respondent’s witnesses admitted they were instructed to clean up the debris per the written directive and failed to timely do so. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 183054 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, August 17, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Theresa DuBois

24605 N. Feather Mountain Road

Paulden, AZ 86334

[email redacted]

Travis B. Hill, Esq.

O’Connor & Dyet, P.C.

[email redacted]

[email redacted]

[email redacted]

Creative Outdoor LLC

[email redacted]

By: OAH Staff