ALJDEC - Licensing

2023A-03173-CHC-ROC · Registrar of Contractors · 2023-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristin Hasting,

COMPLAINANT

Yavapai Landscaping LLC

License No. ROC 336082,

RESPONDENT

No. 2023A-03173-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 10, 2023

APPEARANCES: Kristin Hasting appeared on her own behalf. Nathan Green appeared on behalf of Yavapai Landscaping LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Yavapai Landscaping LLC (Respondent) is the holder of License No. 336082 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 25, 2022, Kristin Hasting (Complainant) entered into a contract with Respondent for, among other things, landscaping design, demolition, and installation.

On or about March 15, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Diamond. After a jobsite inspection, Investigator Diamond 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 June 23, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Poor quality workmanship on block wall mortar; mortar wiped on wall, excess mortar left in joints, discolored.

Investigator’s Observation: The original brown masonry wall at the back of the yard, had the top 4 courses demo'ed and one course reinstalled and the columns brought to height. Wrought iron panels were installed.

At issue is the mortar color which is gray and the block is brown.

The respondent pointed out that the north wall also had a gray mortar on an added course. That wall would be directed for correction to for whoever installed it.

The respondent is to correct only the back east wall and column mortar color in an appropriate manner.

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: 7 - Rose garden area was specified to accommodate appromixately 25 roses; it is half this size.

Investigator’s Observation: The drawing that the complainant had at the inspection calls for a quantity of 10 five gallon roses.

There are no roses present.

Governing Rule: 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 accordance with such plans and specifications and code.

Compliance Item: 9 - I have no mound in the backyard (but two rocks?)

Investigator’s Observation: No mound is present but is contracted. The respondent is to correct the condition in an appropriate manner.

All errors in original.

Following the issuance of the written directive, Respondent’s crew returned to the jobsite, repaired and painted the mortar regarding Compliance Item 2, and restored the mound regarding Compliance Item 9.

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 Diamond testified Compliance Item 7 was rescinded because it was cited erroneously. Investigator Diamond indicated that Compliance Item 9 was also completed.

Complainant testified the mortar was originally installed on a very cold day which caused the color to be off. Complainant testified that although it was true the roses were removed from the plans, the reason the parties had to modify the contract was because of all of the ongoing poor workmanship after the contract began. Complainant admitted the original work which caused Complainant to submit the complaint was below standard, however, the follow-up work, recoloring, and painting the wall was superb.

Mr. Green admitted the work which Respondent was cited for in the written directive was true. The mortar was the incorrect color and the mound was flattened and needed to be rebuilt. After the written directive Mr. Green and his team worked to repair the wall and rebuild the mound.

Administrative notice is taken of Respondent’s License record on October 22, 2023. Respondent’s License No. 336082 was first issued on December 27, 2021, and is active. Respondent’s 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 in conformity with the Registrar’s standards. Investigator Diamond testified all of the written directive complaint items were completed or rescinded. Therefore, Complainant failed to establish 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 completed the corrective work following the Directive being issued. Investigator Diamond testified all of the written directive complaint items were completed or rescinded. Therefore, Complainant failed to establish 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

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant’s complaint in Case No. 2023-03173 against Respondent’s License No. 336082.

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, October 25, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Tom Cole

Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Yavapai Landscaping LLC

[email redacted]

Kristin Hasting

[email redacted]

By: OAH Staff