ALJDEC - Licensing

2023A-06015-CHC-ROC · Registrar of Contractors · 2023-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christopher Walsh,

COMPLAINANT

v.

Envision Landscape and Design LLC

License No. ROC 338258,

RESPONDENT

No. 2023A-06015-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 2, 2023

APPEARANCES: Christopher Walsh appeared on his own behalf. Rafael Zamora represented Envision Landscape and Design LLC.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

Envision Landscape and Design LLC (Respondent) is the holder of License No. 338258 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 4, 2023, Christopher Walsh (Complainant) entered into a contract with Respondent for, among other things, landscaping materials and labor and installation of a pergola. The contract did not include contractor’s business address and license number, name and mailing address of the owner and jobsite address or legal description, the date the parties entered in the contract, estimated date of competition of all work to be performed under the contract, and that the property owner has the right to file a written complaint with the Registrar.

On or about May 25, 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 Mike Wiskow. After a jobsite inspection, Investigator Wiskow 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 July 13, 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 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 - Large rocks in clean fill dirt;

Investigator’s Observation: Verified. There is gravel (3/4-) spread around under the sod. Per the contract (Grading - Grade the entire yard leveled and bring in clean fill dirt and mulch for sod)

There should be clean fill and mulch under the sod, not gravel.

Contractor should repair by appropriate means.

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: 2 - Irrigation protruding above grade;

Investigator’s Observation: Verified. The irrigation pvc is installed in such a way that the top of the pipe is visible prior to sod installation. Per irrigation standards, the pvc lateral irrigation lateral lines should installed with at least six inches of cover for crush protection and to alleviate dry strips in the sod.

Contractor should repair 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 - Weed barrier not installed/missing;

Investigator’s Observation: Verified. There is evidence of areas where weed barrier is not properly installed.

Contractor should verify these areas and repair 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 - Incorrect concrete footing positions;

Investigator’s Observation: Verified. There are six footings installed for a covered structure. The footings are installed incorrectly per local building authority (Too close to existing Structure). The footings are also the incorrect size at the top to receive the prefabricated structure. The concrete footing should be the adequate size to accept the post and hardware and should be located in an area approved by the local building authority.

Contractor should repair by appropriate means.

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Compliance Item: 6 - Working without a permit when a permit is required per local building authority.

Investigator’s Observation: Verified. The covered structure requires a building permit per the local building authority. The contractor installed footings for the structure without permits or inspection. Footings should be approved for permit and inspected by the local building authority.

Contractor should facilitate footing approval, proper placement and size, and make repairs/corrections by appropriate means.

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

All errors in original.

Following the issuance of the written directive, on July 18, 2023, Rafael Zamora, the qualifying party for Respondent, emailed Investigator Wiskow and requested the complaint be dismissed because Complainant allegedly refused access to the jobsite. Investigator Wiskow asked the parties whether any work had been completed. Complainant replied that no work had been completed, resolved, or even started. Mr. Zamora replied stating he was not granted access to the jobsite until two weeks after the written directive was issued. Mr. Zamora alleged he was not granted access because Complainant was on vacation; therefore, he requested an extension of the written directive deadline from Investigator Wiskow. Investigator Wiskow denied Mr. Zamora’s request because he believed the Respondent did not put forth sufficient effort to address the issues prior to the extension request. After the written directive deadline expired, no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22).

Complainant testified the written directive was issued on June 27, 2023, with a deadline of July 13, 2023. No attempt to communicate was made by Respondent after the written directive was issued until sometime near July 4, 2023. Complainant had been on vacation from July 3, 2023, until July 5, 2023. Complainant was on vacation when Respondent attempted to gain access to the jobsite. Respondent then failed to follow up again until Complainant emailed Respondent on July 19, 2023.

Mr. Zamora testified he attempted to gain access to the jobsite around July 4, 2023, but Complainant was on vacation. Mr. Zamora testified he was not given access to the jobsite until July 20, 2023. Once Respondent was granted access, Mr. Zamora reached out to Investigator Wiskow to ask for an extension. Mr. Zamora also testified he had an additional license to address the charge of knowingly contracting beyond the scope of the license or licenses of the licensee. Furthermore, Mr. Zamora testified after the written directive deadline on July 20, 2023, Respondent applied for a permit for the pergola with the City of Glendale.

Investigator Wiskow testified he was unaware of Respondent’s other license for the construction of the pergola and the concrete footing; he confirmed said was active and sufficient for the scope of work contracted.

Administrative notice is taken of Respondent’s License record on October 19, 2023. Respondent’s License record reflects that Respondent’s License No. 338258 was first issued on May 18, 2022, 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 did not obtain the necessary permits to perform work under the contract until after the written directive deadline. While it may be true Mr. Zamora eventually obtained the necessary permits in compliance with the City of Glendale building code, Respondent did not obtain the necessary permits until after the written directive deadline. While it may be true Mr. Zamora eventually obtained the necessary permits in compliance with the City of Glendale building code, Respondent did not obtain the necessary permits until after the written directive deadline. Therefore, Complainant established that Respondent failed to obtain the necessary permits in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Zamor admitted no work was performed on the jobsite prior to the written directive deadline. Mr. Zamora admitted no work was performed on the jobsite prior to the written directive deadline. 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’s contract failed to include the required elements of a contract set forth in Ariz. Rev. Stat. § 32-1158(A). The contract did not include contractor’s business address and license number, name and mailing address of the owner and jobsite address or legal description, the date the parties entered in the contract, estimated date of competition of all work to be performed under the contract, and that the property owner has the right to file a written complaint with the Registrar. Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of Ariz. Rev. Stat. § 32-1154(A)(12).

The evidence established that Respondent did not knowingly contract beyond the scope of the license or licenses of the licensee. Investigator Wiskow confirmed Respondent had the appropriate license to perform the work under the contract. Therefore, Complainant failed to establish a violation of Ariz. Rev. Stat. § 32-1154(A)(16).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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. 338258 for a period of five days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 Ariz. Rev. Stat. § 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 23, 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]

Envision Landscape and Design LLC

[email redacted]

Christopher Walsh

[email redacted]

By: OAH Staff