ALJDEC - Licensing

2022A-11002-CHC-ROC · Registrar of Contractors · 2023-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth and Bucky Gwartney,

COMPLAINANT

Olno LLC

DBA: Outdoorscapes Design

License No. ROC 319880,

RESPONDENT

No. 2022A-11002-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 6, 2023

APPEARANCES: Complainants Elizabeth and Bucky Gwartney appeared on their own behalf. Respondent Olno LLC was represented by Mark Saric who appeared via Google Meet. Investigator Steve Klein appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Olno LLC (Respondent) is the holder of License No. 319880 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 12, 2022, Elizabeth and Bucky Gwartney (Complainants) agreed to have Respondent remodel their backyard, including installation of Travertine tile, addition of Bermuda grass, trees, plants, and lighting. The total cost was to be $35,249.00.

On or about December 6, 2022, the Registrar received a Complaint containing seven items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Steve Klein. The jobsite inspection was performed on February 14, 2023.

Investigator Klein then issued a written directive on or about February 14, 2023, 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 March 16, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint #1 Travertine pavers laid uneven, at different levels throughout project (patio, pool deck and sidewalks).

Inspector’s Observation: Lippage should not exceed 1/8” difference in height between adjacent pavers and outside edges should be even.

• Respondent shall correct by the appropriate means.

Complaint #2 Travertine pavers cut wrong (i.e., damaged) resulting in all cuts edges being chipped/jagged and many corners chipped off. This issue is seen throughout the project (patio, pool deck and sidewalks);

Inspector’s Observation: Jagged edge cuts, Gaps over 3/8” inch and chipped corners over 3/16” inch should be corrected.

• Respondent shall correct by the appropriate means.

Complaint #3 Pool coping installed wrong - Many of the travertine pieces are chipped along the pool edge and the facia pieces are places uneven around the pool.;

Inspector’s Observation: Chipped corners over 3/16”, uneven edges, uneven grout joints, and gaps over 3/8” inch should be corrected.

• Respondent shall correct by the appropriate means.

Complaint #4 Slope around the pool was not installed correctly. There is pooling of water in several locations around the pool decking.

Inspector’s Observation: Standing water exceeding 3/32” should be corrected. Flood, wait 30 minutes and check for ponding.

Complaint #5 Travertine edge pavers along sidewalks installed crooked and uneven

Inspector’s Observation: Edges should be even.

• Respondent shall correct by the appropriate means.

Complaint #6 Travertine pavers at where sidewalk and gate exit intersect installed sloppy and uneven - create almost a curved (concave) surface rather than flat.

Inspector’s Observation: Excessive deviations, dips, sags over short distances should be corrected.

Complaint #7 Travertine pavers on upper pool deck installed sloppy, not level, with jagged cuts and with haphazard pattern - pooling of water in this area.

Inspector’s Observation: Respondent agreed to correct pattern between pool and spa. Edges should be even and standing water exceeding 3/32” should be corrected.

• Respondent shall correct by the appropriate means.

(All errors contained in the original)

A Compliance Jobsite Inspection was held on April 18, 2023, and an Amended Written Directive was issued, for a few items which remained after the entire replacement of the tile.

On May 16, 2023, Investigator Klein issued notes regarding a Directive Compliance Inspection, which indicated the following in pertinent part:

. . .

• No Compliance inspection was performed. I received an email from the Complainant stating the contractor did not address the Directive

Compliance Findings:

Complaint #1 Travertine pavers laid uneven, at different levels throughout project (patio, pool deck and sidewalks).

Inspector’s Observation: Lippage should not exceed 1/8” difference in height between adjacent pavers and outside edges should be even.

• Respondent shall correct by the appropriate means.

Inspector’s Observation: Jagged edge cuts, and chips over 3/16” inch should be corrected.

• Respondent shall correct by the appropriate means

Complaint #4 Slope around the pool was not installed correctly. There is pooling of water at the step

Inspector’s Observation: Standing water exceeding 3/32” should be corrected.

Note:

Please review the complaint items listed above. If any of the items have not been corrected at the time of the compliance inspection this complaint will be forwarded to the Registrar’s legal department and a citation may be issued.

. . .

On May 17, 2023, 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) and A.R.S. § 32-1154(A)(22).

On or about May 31, 2023, Respondent timely filed an Answer with the Registrar.

On or about June 7, 2023, a Notice of Hearing was issued setting a hearing on July 18, 2023 at the Office of Administrative Hearings, an independent state agency.

After several continuances, a hearing was held on November 6, 2023.

At hearing, Investigator Klein testified as to the Registrar’s involvement and the above timeline.

Investigator Klein testified that 75% of the work was redone prior to the April 18, 2023, inspection but just complaint items 1, 2 and 4 needed final corrections. He also testified that he believed that the redone work looked good overall.

As to Item 1, Investigator Klein testified that he did not measure the lippage but rather could tell that it was greater than the eighth of an inch standard set by the Registrar.

As to item 2, Investigator Klein testified that he believed that the tiles had jagged edge cuts and that there where chips greater than 3/16 of an inch which were not corrected. Investigator Klein testified that he essentially made up that standard but that the tiles should have been installed per manufacturers specifications, but that he never received the same from Respondent.

Investigator Klein testified that he did not complete a final jobsite inspection, rather he relied on an e-mail from Complainant informing his that the work had not been corrected

Bucky Gwartney testified on behalf of Complainants and offered 45 exhibits into evidence.

Mr. Gwartney testified that there were many more tiles which had chipping or jagged edge defect than were pointed out by investigator Klein. Based upon this, Mr. Gwartney also questioned the impartiality of Investigator Klein as at least 14 times during the April 2023 inspection Investigator Klein stated that the project “looked really good”, and seven times stated that the case should not be brought to hearing.

As to the standing water issue, Mr. Gwartney testified that exhibits 21-31, and 37- 41 all demonstrated areas of pooling water.

Further, Mr. Gwartney testified that after the April 18, 2023 inspection he requested to walk the project piece by piece with Respondent to find any incorrect tiles, but Respondent refused, which led him to e-mail Investigator Klein in May that the corrective work had not been performed.

In closing arguments, Complainant acknowledged that there were no perfect jobs, but that he believed that Respondent’s work with regards to the chipping and jagged edges were not compliant with the 3/16 of an inch standard and that there was still an issue of standing water.

Respondent offered the testimony of Odin Ortega and Pedro Martinez, Jr., and offered one exhibit into evidence.

Mr. Ortega and his wife were Respondent’s co-owners. Mr. Ortega testified that after the initial Directive, he replaced the pavers and that the job was substantially completed. Mr. Ortega also testified that during the April 18, 2023 inspection, Investigator Klein stated several times that the project looked good and that the case would be dismissed if it went to hearing.

Further, Mr. Ortega testified that Investigator Klein did not measure the lippage on the tiles to determine if they were complainant with the Registrar’s standards, and that Investigator Klein stated that there were no standards for the chipping.

In addition, Mr. Ortega testified that he forwarded the information from Cholla tile to Investigator Klein.

As to the sloping and drainage issue, Mr. Ortega testified that they laid the tile over the existing pool deck and the contract did not call for changing the slope.

Finally, Mr. Orgeta testified that he would not redo an entire job just to leave issues unfinished, and that Investigator Klein never reached out to him prior to issuing his May 16, 2023 letter.

Mr. Martinez was the Project Manager and initial designer for Complainant’s project. He too testified that the contract did not call for a change to the slope for drainage. Mr. Martinez testified further that he suggested installing a new drain but that Mr. Gwartney declined and that he could not life the tile because of the fascia which would change the look, which was also something Mr. Gwartney did not want to occur.

In closing, Mr. Saric argued that Investigator Klein failed in three ways, first, he did not measure the lippage to determine if it was complaint with the 1/8 of an inch standards. Second, Investigator Klein made up the standard of 3/16 of an inch for the chipping and jagged edges of the tile. And third, while a water test was performed a the April inspection, Investigator Klein failed to stay for the duration of that test, 30 minutes, so he should not have cited Respondent for that issue as he just took Complainant’s word in his email.

Administrative notice was taken of Respondent’s prior License record on November 21, 2023. Such prior License record reflected that Respondent’s License No. 319880 was first issued on May 30, 2018, and reflected that there was one 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards, at least initially. Mr. Ortega did not challenge the same, as it admitted in both its Answer to the Registrar and at hearing that he replaced the entire project. 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).

As to the possible violation of A.R.S. § 32-1154(A)(22), while Investigator Klein did not measure the lippage to determine if it was greater than 1/8 of an inch, given his experience in the area, the tribunal believes that given his experience, he could tell if it was compliant with the Registrar’s standards. Further, there was no controverting evidence presented by Respondent demonstrating that the tiles were within the standard. Thus, as to Complaint Item 1, Respondent is in violation of A.R.S. § 32-1154(A)(22).

However, as to the other two items, the tribunal finds that it was not proven by a preponderance of the evidence that Respondent was in violation of A.R.S. § 32-1154(A)(22). First, as to the jagged edges/chipping, there was no evidence presented that 3/16 of an inch was a Registrar standard and Investigator Klein testified at hearing that he simply made up that number. Finally, as to the pooling, the evidence presented did not indicate when the Complainant’s photos occurred, nor if it was after the 30 minute Registrar standard. Again, the evidence presented demonstrated Investigator Klein did not wait for the conclusion of the water test in April, nor conducted another water test in May when a compliance inspection should have been perfromed, thus he could not have concluded that the issue was not incompliance.

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. 319880 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 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.

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, November 21, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Bucky and Elizabeth Gwartney

[email redacted]

Mark G. Saric

[email redacted]

By: OAH Staff