ALJDEC - Licensing

2023A-05920-CHC-ROC · Registrar of Contractors · 2023-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Catherine McDougall,

COMPLAINANT,

v.

J4 Construction LLC,

License No. ROC 328291,

RESPONDENT.

No. 2023A-05920-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2023

APPEARANCES: Catherine McDougall represented herself. Qualifying Party and Member Tristen Jimenez represented J4 Construction LLC with witness Armando Perez. ROC Investigator Doug Barrett appeared.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Respondent is the holder of License No. 328291, KB-2 Dual Residential and Small Commercial, issued by the Arizona Registrar of Contractors (Registrar, or ROC) in March 2020.

On or about May 23, 2023, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating multiple items of concern with an incomplete yard project, including terracotta tile allegedly unsealed and now damaged/distressed, irrigation lines not buried, artificial grass seam issues, leaking pipe, plants that had died and flights not working.

In August of 2021, Complainant contracted with Respondent for the backyard project; the two page written estimate is well-detailed with specifications of materials to the entire project. Complainant designed the layout of the terracotta tile with decorative tile pieces; the tile was laid over Complainant’s existing flagstone the surface of which had been prepared with an underlayment/mortar. The contract price is $31,405.00.

After receiving the Complaint, Registrar’s Investigator Doug Barrett conducted a jobsite inspection on June 29, 2023 and, thereafter, issued a Written Directive (Directive) verifying that four of the nine specific complaint issues had been verified as needing corrective work.

The Directive noted the following four items to be corrected:

Compliance Item: 1 – Saltillo tile left unsealed for 18 months and became damaged.

Investigator’s Observation: Verified. I observed several cracked tiles throughout the patio area along with some grout overspray on some tiles. The Respondent stated they had agreed to repair the tiles but had not had a chance yet.

Contractor should correct the tiles by appropriate means.

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

Compliance Item: 3 –Artificial grass has noticeable seams.

Investigator’s Observation: Verified. I observed several seams in the artificial grass that appeared to be minor and some seam visibility is to be expected. I did observe one seam, to the rear of the pool, which was excessive and had gaps up to 1⁄2”. The Respondent observed this section and stated it could be better. Contractor should correct the seam by appropriate means.

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

Compliance Item: 6 – Leaking pipe for the waterfall is still leaking and is caulked.

Investigator’s Observation: Verified. I observed the waterfall and there appeared to be two areas leaking. The contract states “Repair water feature on pool”. Both parties agreed the scope of work was to repair the leaks. Contractor

should correct the leaks by appropriate means.

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

Compliance Item: 9 – One of the lights are not working.

Investigator’s Observation: Verified. I observed the landscape lighting as turned on by the Respondent. The lights at the pool planter were functioning but none of the lights along the rear planter were functioning. Contractor should correct by appropriate means.

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

The Registrar set August 4, 2023 as the deadline for Respondent’s compliance with the Directive.

Regarding the remaining unverified Complaint items, the Directive noted the following:

Compliance Item: 2 – Irrigation lines are not buried

Investigator’s Observation: Unverified. I observed irrigation lines rising above the ground cover in various places throughout the planters. The Complainant has had her own landscaper maintaining the yard since project completion. The Complainant also had the block walls repaired and painted since the irrigation was installed and they may have raked up the lines while painting the base of the wall. Buyer resumes responsibility of sprinkler heads, bubbler heads and distribution tubing of drip systems after 90 days unless improper workmanship by the contractor can be shown. In response to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Governing Rule: N/A

Compliance Item: 4 – Very little coverage over the flower bed area.

Investigator’s Observation: Unverified. The Complainant pointed out the mulch not having coverage along the border to the grass. The mulch was very light weight and it appeared to have been moved by a blower during normal yard maintenance as there were piles pushed back from the edge. The Complainant has her own landscaper for maintenance, not the Respondent. No correction required.

Governing Rule: N/A

Compliance Item: 5 – Project was told would be finished November 2021 and is still not complete.

Investigator’s Observation: Unverified. This is a general statement and the project was completed with only some warranty issues remaining.

Governing Rule: N/A

Compliance Item: 7 – One coat of sealer was applied to seal the tile and grout even though tile appeared dirty.

Investigator’s Observation: Unverified. I observed the tile and it appeared to be sealed. The Respondent had stripped and resealed the tile once as the finish was not aesthetically pleasing to the Complainant. Sealing the tile and type of sealer is not in the contract but both parties agreed it was to be sealed. The Complainant pointed out discolored tiles/sealer around the pool edge and waterline. These tiles seemed to have been affected by the pool water chemistry and are not caused by the Respondent. No correction required.

Governing Rule: N/A

Compliance Item: 8 – Water was turned off for an extended period and plants and trees died.

Investigator’s Observation: Unverified. The vegetation has been replaced by the Respondent since and a couple plants are not surviving. This is not an item the Registrar can address as there is no way to verify the planting and continued maintenance provided by the Complainant.

Governing Rule: N/A

At the time of the Compliance Inspection on August 7, 2023, Investigator Barrett found that tiles had been repaired although there was some grout overspray, the artificial grass seam had been repaired but not very well done, the leaking pipe was resolved, and the lights were all functioning. Investigator Barrett’s determination was that Items #1 and #3 remained outstanding items.

Investigator Barrett forwarded the Complaint for legal citation against Respondent.

The Registrar issued a Citation on August 14, 2023, charging Respondent’s license with possible violations of: Ariz. Rev. Stat. 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and Ariz. Rev. Stat. § 32-1154(A)(22).

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

On August 21, 2023, Respondent filed an Answer to the Citation, indicating that Respondent had believed the corrective work it had done was appropriate and that it was willing to come back on the grass seam. Respondent noted that it had missed the portion of sentence in the Directive about the grout droppings, and would have taken care of it before the deadline but, again, were willing to come back to work on that or come to a monetary settlement, because Respondent was still owed money by Complainant.

The Registrar noticed the matter for hearing.

At hearing, Complainant admitted that she had not been familiar with Saltillo tiles and is not sure why the tiles [at/around the pool edge] became “white” stained. Complainant argued that, aesthetically, the tile looks “distressed” with grout droppings that had not come off with the power washing; she fears the grout droppings are now “absorbed” in the tile. Complainant argued that there is new cracking and stated that, perhaps, putting the tile over the flagstone had not been such a good idea.

At hearing, Respondent indicated that the patio and pool area with the flagstone, over which they laid the Saltillo tile, was already cracked, most likely due to the shifting of the ground. Respondent noted it had taken care of the designated cracked tiles and had re-grouted. Respondent stated that, even at the first inspection, Investigator Barrett had said the “white” staining was the result of chemicals used in the pool water. Respondent described the steps of the sealing process it had gone through: it had rained before Respondent had opportunity to seal the tile; once the tile was dry, Respondent put a sealant on the tile, which left a film; Respondent then power washed the tile to strip the sealant and acid washed it; and, then applied a glossy finish. Respondent noted that the varying color was simply the character of Saltillo tile.

Complainant further argued that the tile had needed a grout “release” and that the tile should have been sealed before the grouting; she also noted that there had been a “white haze” on the tile before it was power washed.

Respondent indicated it had not been successful in arranging with Complainant a date to come back out to readdress the grout issue.

Since the hearing session in October 2023, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this decision.

Administrative notice is taken of Respondent’s record with the Registrar, which reflects this case is the only outstanding complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Regarding workmanship, Investigator Barrett found workmanship contracting issues still existed at the time of the June and July job site inspections. Following the issuance of the second Directive mandating corrections, Investigator Barrett indicated that the workmanship issues remained to a lesser degree.

10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of: Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner; and, in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.

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RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar suspend Respondent’s ROC License 328291 for one day and further recommends Respondent pay a total penalty of $600.00 no later than the effective date of the final decision and order in this matter.

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 6, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically on November 6, 2023 to:

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

[email redacted]

Doug Barrett

ROC Investigator

[email redacted]

Cathy McDougall

[email redacted]

Tristen Jimenez

J4 Construction LLC

[email redacted]

By: OAH Staff