ALJDEC - Licensing
2023A-06657-CHC-ROC · Registrar of Contractors · 2024-02-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dawn Rose ,
COMPLAINANT
v.
Tri-City Earthworks & Labor LLC
License No. ROC 317806,
RESPONDENT
No. 2023A-06657-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 5, 2024, 1:00 P.M.
APPEARANCES: Complainant Dawn Rose appeared on her own behalf; Taylor Stanton, Qualifying Party, appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
EXHIBITS ADMITTED INTO EVIDENCE: None submitted.
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Tri-City Earthworks & Labor, LLC (Respondent), is the holder of License Number 317806 issued by the Registrar of Contractors (Registrar).
2. On or about June 9, 2023, Dawn Rose (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work by Respondent in connection with landscaping and hardscaping work at a residence in Prescott, Arizona (“project”).
3. The Registrar performed an inspection of the project on July 31, 2023. Thereafter, the Registrar issued a Written Directive, dated August 29, 2023 (“First Directive”), requiring Respondent to remedy the following violations by appropriate means by September 15, 2023:
Compliance Item: 1 - Condensed from a narrative- I hired Tri City
Earthworks & Labor to perform major landscaping. ie:
drainage/grading/synthetic grass, paver repair, retaining wall/dry stack
removal and replant and install rip-rap, french drain install and install gravel and install paver driveway
Investigator’s Observation: The deficiencies are noted in this directive. The complainant did bring up the leaving of extra rock to cover an area that had brick stacked on different colored rock. This was not done. This task was not contracted and cannot be directed. The respondent is to correct the deficiencies listed below 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: 4 - There is also ponding water on the paver driveway. It
seems as if the entire drainage system is not moving the water away from the lot.
Investigator’s Observation: There is evidence at the top of driveway
between the 2 garages of water retention in the paver driveway.
There is a visible belly in the driveway when walking up.
The respondent is to correct the condition 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: 5 - The driveway prior to paver installation was not
graded properly and/or compacted properly-several high low spots
Investigator’s Observation: As stated in item 4, there is a belly in the area between the 2 garages that retains water and the respondent is to correct the condition 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: 6 - The installed weed cloth throughout the yard and it is
holding water
Investigator’s Observation: Numerous areas throughout have exposed weed cloth due to the rock being spread too thin.
At the house, southeast corner general area, the rock is too high to meet the code requirement for weep screed clearance of 4" at an unpaved surface.
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: 8 - The grades were not established properly to commencing work
Investigator’s Observation: At the side yard at the east end of the home, the grade does not appear to slope away from the structure as required by code.
R401.3 Drainage:
Surface drainage shall be diverted to a storm sewer conveyance or other
approved point of collection that does not create a hazard. Lots shall be graded to drain surface water away from foundation walls. The grade shall fall not fewer than 6 inches (152 mm) within the first 10 feet (3048 mm).
Exception: Where lot lines, walls, slopes or other physical barriers prohibit 6 inches (152 mm) of fall within 10 feet (3048 mm), drains or swales shall be constructed to ensure drainage away from the structure. Impervious surfaces within 10 feet (3048 mm) of the building foundation shall be sloped not less than 2 percent away from the building.
The complainant reported a major retention of water at this location.
The respondent is to ensure that his work is code compliant as to the slope away from the home and the weep screed clearance 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.
4. Thereafter, the Registrar received an addendum to the Complaint from Complainant and performed a second job site inspection on September 26, 2023. The Registrar then issued a second Directive, dated September 26, 2023 (“Second Directive”), requiring Respondent to remedy the following violations by appropriate means by October 23, 2023:
Complaint Item: 1 - Driveway pavers with a rust color discoloration must be fixed. Prior to the driveway pavers being removed and re-installed there were pristine.
Investigator’s Observation: In front of the garage, numerous pavers exhibit rust stains on the pavers. As a result of the previous directive to correct the drainage in this area, the respondent pulled up a large section of pavers. Several of the pavers in this area had rust stains showing prior to being pulled up. The respondent in the course of the corrective work, did not cull out these stained pavers and reinstalled them. The complainant showed me video of an unknown metal product found in the sand in her driveway. Metal products in the sand could be having a negative impact on the pavers. The respondent is to correct the condition 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.
Complaint Item: 2 - The rear yard is becoming more uneven in its grading
Investigator’s Observation: The complainant relayed that the yard floods when it rains. It does not appear that water stays for more than 48 hours. There is however, raised soil under the weed fabric indicating that the yard certainly has some issues as the substrate is not flat. Numerous areas of fabric are showing as the gravel is not deep enough. The respondent should make sure the yard is reasonably flat under the fabric and has positive rainage 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.
Complaint Item: 3 - New and continued issues with the irrigation breaking and leaks (contract called for new irrigation drip lines).
Investigator’s Observation: There is evidence of a leak in the black poly near the raised planters at the rear of the yard. The respondent is to correct the condition 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.
5. After being informed by Complainant that corrective work had not been fully performed, the Registrar then issued a Citation to Respondent, dated November 2, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for January 5, 2024, 1:00 P.M. At the January 5, 2024, hearing, Complainant Dawn Rose testified on her own behalf; Taylor Blanton, qualifying party, and Douglas Lash testified on behalf of Respondent. Jim Dimond, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. Neither party submitted exhibits to this Tribunal.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directives and his job inspection notes. Specifically, he testified that none of the items in the First Directive were corrected and that attempted corrections resulted in the Second Directive.
8. Complainant Dawn Rose testified, as herein relevant to the Citation, that none of the First Directive or Second Directive items were completed. She testified she saw metal in the sand that was applied. She stated Respondent removed one section of driveway and put pavers back in that looked rusted. She further stated she did not hear from Respondent again until three days after the deadline.
9. Taylor Blanton testified on behalf of Respondent, as herein relevant to the Citation, that he was not involved in the project and had never been to the residence. He stated he does not believe that any of the Directive items were taken care of even though there were attempts to do so.
10. Douglas Lash, estimator and project manager, testified on behalf of Respondent, as herein relevant to the Citation, that he wanted to come back for repairs and that the company did not want the original project manager back on the project. He stated he missed some unspecified second meeting at the residence, but later stated it was the second deadline that was missed. He stated he asked to do the corrective work, but his request was three days after the deadline had passed.
11. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on January 24, 2018. The site also reflects one Open case, no Disciplined cases, and three Resolved/Settled cases. However, the site does reflect that Respondent’s license is currently suspended.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a). There was no dispute that the First Directive and Second Directive items existed and were not corrected.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no dispute that corrective work was not performed and that one attempt at corrective work did not remedy the items. There was no evidence presented of a valid justification for failing to perform such work.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Tri-City Earthworks & Labor, LLC’s, License Number 317806 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the 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, February 11, 2024.
/s/ Roger A. Geddes
Administrative Law Judge
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Dawn Rose
[email redacted]
Tri-City Earthworks & Labor LLC
[email redacted]
By: OAH Staff