ALJDEC - Licensing

2023A-06894-CHC-ROC · Registrar of Contractors · 2024-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Spencer Nield ,

COMPLAINANT

v.

AZ Pavers LLC

License No. ROC 246645,

RESPONDENT

No. 2023A-06894-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 30, 2024

APPEARANCES: Spencer Nield (Complainant) appeared on his own behalf. Thomas Steiner appeared on behalf of AZ Pavers LLC (Respondent).

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Complainant’s exhibits 1 through 8.

_____________________________________________________________________

FINDINGS OF FACT

AZ Pavers LLC (Respondent) is the holder of License No. 246645 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 21, 2021, A Finer Touch Construction (AFT) entered into a contract with Respondent for the installation of pavers at the LaLiberte residence located at 11450 E. Blue Wash Road, Cave Creek, AZ 85331 (Project).

On or about June 19, 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 David Fagerburg. After a jobsite inspection, Investigator Fagerburg 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 Tuesday August 15, 2023.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliant Item 1: (ROC, this is copied from the form notice sent to AZ Pavers) This letter shall serve as written notice of breach (the “Notice”) by AZ Pavers in the performance under the Subcontract. Specifically, as of the date of this Notice, the quality of the work performed by AZ Pavers does not meet the standards as set forth by the Subcontract or the manufacturer’s installation specifications. Included in the scope of work contained in the Subcontract, AZ Pavers was to install backyard and front entry pavers specified as 24” x 24” Belgard Quartziti porcelain pavers. The scope of work

specifically states the work was to include “leveling sand, disc spacer, and high performance 50 polymeric sand to joints.” Additionally, Belgard’s manufacturer’s installation specifications state the porcelain pavers should never be installed with porcelain to porcelain contact and specifically calls for 4mm spacing in between pavers using 4mm plastic disc spacers. In fact, the installation instructions repeatedly specify the use of 4mm plastic disc spacers on numerous pages and locations. AZ Pavers failed to follow the scope of work contained in the Subcontract and Belgard’s installation specifications by installing the porcelain pavers without the proper spacing and without the use of the plastic disc spacers. Instead, the pavers were installed in a manner that resulted in the pavers contacting each other. This, in addition to AZ Pavers using inadequate sub grade material and compaction as required per Belgard’s installation specifications, has resulted in movement of the pavers, as evidenced by both noise when walked across and chipping of the pavers. Over the past six months, AFT has attempted to help resolve the improper installation by providing AZ Pavers multiple attempts to correct the work based upon promises from AZ Pavers to do whatever is necessary to correct the issues. Attempts have been made to remove certain pavers and reinstall, along with attempting to add polymeric sand between pavers, which have little to no space. While these corrective measures have helped in limited areas, there are many areas that are still problematic.

Investigator’s Observation: Verified. The respondent shall correct the porcelain pavers that are not installed per the manufacturer’s installation specifications and gaps that are not uniform by appropriate means.

Following the issuance of the written directive, Investigator Fagerburg extended the directive deadline to September 21, 2023. After the extended deadline had expired, Investigator Fagerburg was notified no corrective work had been performed.

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 Fagerburg testified consistently with his jobsite inspection notes and observations as well as his written directive. He further testified that no compliance inspection was conducted because he was advised that no corrective work had been performed.

Complainant testified that he was the Director of Operations for AFT, the general contractor on the Project. Complainant contracted with Respondent in July 2021 for the installation of pavers at the Project and work began on the Project in November 2022. By the end of November 2022, the work was completed.

Complainant testified that during the scope of the work, AFT personnel asked Respondent about the use of spacers and were told by Respondent that spacers were not needed. Complainant further testified that after the work was complete, there were issues in the Project. Because the pavers did not have spacers, the pavers were touching in areas and because they were touching, the subgrade below was not stable. Complainant testified that over the next couple of months, Respondent attempted to correct the work by adding polymeric sand over the pavers and pounding it in, but it did not resolve the issues.

Complainant further testified that there was not a way to add spacers without having to remove all of the pavers and reinstalling them. Finally, Complainant testified that after the written directive was issued, he had little communication from Respondent.

Adam Cade, Director of Construction, testified on behalf of Complainant. Mr. Cade testified to the conversations he had with Respondent once the poor workmanship issues were discovered. He testified that Respondent and he discussed ways in which Respondent would attempt to fix the issues identified in the written directive.

Andrew Clark, Superintendent of the day to day project, testified on Complainant’s behalf. Mr. Clark testified that he researched the manufacturer’s specifications and testified that Respondent had not used the proper base material. Respondent used quarter minus when installing the pavers rather than polymeric sand. He further testified that Respondent never asked him or AFT whether spacers were needed. Rather, Mr. Clark testified that he was simply told that the pavers were fine without spacers. He stated that he never instructed Respondent not to use spacers and he would never have proceeded without spacers without the approval of the homeowner if the issue had been brought to him. Finally, he testified that he did not recall the homeowner ever asking him to tell Respondent not to use spacers.

Jennifer LaLiberte, homeowner of the Project, testified on behalf of Complainant. Mrs. LaLiberte testified that she never instructed Respondent on how to perform its work or on how to install the pavers or spacers. She further stated that there were areas where there was no gap, but also that there were areas that had a half inch gap. She stated that the current condition of the pavers included the pavers scraping against each other, producing a nails-on-a-chalkboard noise; some pavers were sinking while others were tilting up on the edge substantially; and that the pavers that were rubbing against each other were causing chipping to the pavers. She stated that the condition of the Project continued to deteriorate.

Thomas Steiner, owner, testified on behalf of Respondent. Mr. Steiner testified that he believed this was a “money-grab.” He testified that Respondent was hired to do the pavers as labor only and that he installed the pavers as directed by Mr. Clark. He testified that he first did the pool coping not utilizing pavers to which he stated Mr. Clark witnessed and approved. Based on that, he continued to do the remainder of the Project.

Mr. Steiner further testified that he was instructed by Marc LaLiberte that Mr. LaLiberte wanted “tight joints” and no grout joints so those were the directions he followed. He further testified that Respondent was not paid for the install. He further testified that he put “spacers” in the original bid, so the only logical explanation for not having used spacers was either that he was instructed not to, or that Respondent simply forgot. He stated that spacers were sitting on the jobsite. He stated that his crew would do what the general contractor told them to do.

Mr. Steiner further testified that using a different base material would not have made a difference in the Project. Lastly, he testified that he did not provide any written notice or change order advising Complainant that Respondent was going to deviate from the manufacturer’s instructions.

Administrative notice is taken of Respondent’s prior License record on July 30, 2024. Such prior License record reflects that Respondent’s License No. 246645 was first issued on June 15, 2008, and is currently suspended. Such prior License record also reflects that there was this open case and one prior resolved/settled case 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.”

It is undisputed that the pavers were not installed per the manufacturer’s installation specifications. It is also undisputed that no spacers were utilized and the improper sub grade material was used in the installation. Respondent’s position is that the homeowner requested that it not utilize spacers when conducting the installation. Notwithstanding, even if this were true, it is the responsibility of the contractor to ensure its work is completed in a workmanlike manner, which necessarily includes following manufacturer’s installation specifications. Admittedly, there was no change order or other written notice to Complainant that Respondent was going to deviate from the manufacturer installation procedures.

Thus, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 did not attempt to 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. 246645 for a period of 4 days.

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)(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, August 19, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff