ALJDEC - Licensing
2023A-14029-CHC-ROC · Registrar of Contractors · 2024-08-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mike Cvitanovic,
COMPLAINANT,
v.
Arizona Dreamscapes LLC,
License No. ROC 223513,
RESPONDENT.
No. 2023A-14029-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 5, 2024.
APPEARANCES: Mike Cvitanovic represented himself. Scott Eppinger represented Arizona Dreamscapes LLC.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet).
FINDINGS OF FACT
Arizona Dreamscapes LLC (Respondent) is the holder of License No. 223513, Specialty Dual CR-21 Hardscaping and Irrigation Systems, issued by the Arizona Registrar of Contractors (Registrar or ROC) on August 23, 2006.
On or about December 19, 2023, Mike Cvitanovic (Complainant) filed a Licensed Complaint Form (Complaint) with the Registrar indicating his complaints regarding Respondent’s hardscaping work. Complainant indicated the work began in April 2022 and ended in July 2022 for a total contract price of $25,450.00. Complainant noted issues with the cleaning and sealing of pavers and with alleged improper infill beneath installed artificial turf.
The parties had entered into several agreements. A contract dated April 30, 2022, was for installation of a putting green with surrounding synthetic grass; the total contract amount was $6,500.00. A contract dated July 1, 2022 called for power washing, cleaning and sealing of pavers; the total contract price was $2,000.00. The hearing record also contained a listing of materials and the costs (totaling $25,450.00), with payments beginning January 2022.
After receiving the Complaint, Registrar’s Investigator James Carter scheduled and conducted a jobsite inspection on February 27, 2024. Respondent was not in attendance. At that time, Complainant requested to add a third item, and Investigator Carter informed him that an addendum to the Complaint was needed and another inspection would need to be scheduled to allow notice to Respondent. Investigator Carter took multiple photographs on February 17, 2024.
Investigator Carter scheduled and conducted a second jobsite inspection on March 21, 2024. Respondent was in attendance. Investigator Carter took additional photographs on March 21, 2024.
Following the second inspection, Investigator Carter issued a Written Directive (Directive) on March 29, 2024 verifying that some corrective work was needed.
The Directive noted the following work needed to be corrected:
Compliance Item: 1 - Sealer - the pavers were not properly cleaned and sealed, as per our discussion and instructions. There are slurry drops and stains throughout the entire patio that were covered with sealer. Pressure washer was the only method of cleaning, with no cleaning product used. The type of sealer appears to be acrylic and is not a breathable water-based sealer, as discussed and agreed to per contract. The pavers now are white, like they are frosted or snowed, because of the improper application and/or product. The efflorescence has risen to the top of the pavers, where it is trapped by the sealer, throughout most of the patio.
Investigator’s Observation: Verified. Investigator observed many areas around the pool and the deck were the sealant was inconsistent. Some areas had a clear look some areas did not appear to have been sealed and other areas had a chalky look to them. The Respondent will need to correct this by the 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: 2 - Synthetic turf - The turf application has not been fully completed to Association of Synthetic Turf specifications. The contract called for 900 lbs of infill/sand. It is clearly obvious that a minimal amount of sand was applied. I observed only two 50 lbs bags being applied. The grass does not stand up properly and there has been some trip and fall issues due to the improper completion.
Investigator’s Observation: Partially Verified. Investigator has no first hand knowledge of the amount of sand used under the synthetic turf. the turf appeared to be consistent across the surface. Investigator did observe some areas around the edge of the grass that were coming up and not properly nailed down and could pose a tripping hazard. The Respondent will need to correct this by the 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.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliance Item: 3 - Upon us inspecting the sub surface sample of soil and sand, I decided to explore several other test holes. I have come to the conclusion that there are many more areas of sub industry standard specifications and installation
Investigator’s Observation: Arizona Minimum Workmanship standards state "Leveling sand should be a minimum of 3⁄4” and a maximum of 1 1⁄2”. Complaint item meets minimum workmanship standards. No correction is required.
The Registrar set forth April 19, 2024 as the deadline for Respondent’s compliance with the Directive.
On April 9, 2024, Respondent contacted Investigator Carter to advise him that the corrective work had been completed. However, on April 30, 2024, Complainant advised Investigator Carter that he felt the work was not up to standards.
On May 13, 2024, Investigator Carter conducted a compliance inspection. Respondent was not in attendance. Investigator Cater inspected the work, took photographs, and determined that, as to Item 1, the corrective cleaning and sealing work on the pavers had inconsistent results and issues remained. Investigator Carter found that Item 2 was corrected to industry standards. Investigator Carter subsequently forwarded the Complaint to ROC legal department for legal citation against Respondent.
The Registrar issued a Citation on May 21, 2024 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)(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 June 5, 2024, Respondent filed its answer (Answer) to the Citation. Respondent stated as follows:
Arizona Dreamscapes repaired the sealer on the pavers in question on April 9th-18th 2024. We removed the existing sealer first. We cleaned and power washed the pavers [with] paver cleaner. We let the pavers dry for four days. We applied two even coats of paver sealer with a three hour dry time between coats.
The matter was not resolved informally by the parties and proceeded to administrative hearing.
At hearing, Investigator Carter testified regarding the Complaint, his inspection and the workmanship deficiencies he had observed, and that the cleaning and sealing issues had remained on Item 1.
At hearing, Complainant argued that cleaning and sealing work had not been properly done resulting in the continued issues. Complainant argued that he had been able to observe the corrective power wash work through a camera, and he argued that a particular mixture should have been brushed on first and let sit prior to power washing to assure the pavers were properly cleaned.
At hearing, Respondent noted that, after he closed the business down in May of 2023, he did not have the same email address, inferring, that was why he missed the compliance inspection. Respondent indicated that, for the corrective work, he had power washed the pavers with a cleaner and let it dry for 4 days before he resealed the pavers.
Since the hearing session, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this recommended decision.
Administrative notice is taken today of Respondent’s license record with the Registrar, which reflects that the instant matter is the only open complaint.
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. Following the issuance of the Directive mandating correction of the window installations regarding workmanship, Investigator Carter found the workmanship violation issue on the pavers cleaning and sealing still existed at the time of the compliance inspection.
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.
11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar suspend Respondent’s ROC License 223513 for one business day.
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 may institute a revocation on 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 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, August 27, 2024.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Legal Department
Arizona Dreamscapes LLC
[email redacted]
Mike Cvitanovic
6219 N 35th Street
Tacoma, WA 98407
[email redacted]
James Carter
[email redacted]
By: OAH Staff