ALJDEC - Licensing
2023A-14197-CHC-ROC · Registrar of Contractors · 2024-06-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Scott Turner,
COMPLAINANT,
v.
Arizona Luxury Landscape and Design Inc.
License No. ROC 334645,
RESPONDENT.
No. 2023A-14197-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on May 24, 2024.
APPEARANCES:
For Complainant: Scott Turner and Lynn Turner.
For Respondent: Nancy Randle.
For the Registrar of Contractors: Investigator David Fagerburg.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE:
Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors, excluding pages 50–92 of the pdf.
FINDINGS OF FACT
Arizona Luxury Landscape and Design Inc. (Respondent) is the holder of License No. 334645 issued by the Arizona Registrar of Contractors (Registrar).
On August 18, 2023, Scott Turner (Complainant) entered into a contract with Respondent for, among other things, constructing a boulder wall that was to be 80 feet long by four to five feet high with two French drains and extending to the corner of the property.
On or around October 17, 2023, Respondent completed a boulder wall, which Respondent admitted was not between four and five feet tall. Complainant indicated that he was unhappy with the wall, and Respondent agreed to remove and rebuild the wall.
On December 13, 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, who issued a Jobsite Inspection Notice on December 15, 2023, scheduling the inspection for January 11, 2024.
Investigator Fagerburg conducted the jobsite inspection on January 11, 2024. Following the inspection, Investigator Fagerburg issued a Written Directive From the Registrar to Respondent on January 19, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: Scope of work not completed to contract,.
Investigator’s Observation: Verified. The respondent shall complete the project per the original written estimate by appropriate means...
Compliant Item 9: Contractor assured us that she could do the job to our satisfaction and we are left with an unfinished mess.
Investigator’s Observation: Verified. The respondent shall complete the project per the original written estimate by appropriate means...
The Written Directive required Respondent to notify Investigator Fagerburg of Respondent’s compliance with the directive prior to 5:00 p.m. on February 12, 2024. Respondent requested an extension to comply with the Directive, which Investigator Fagerburg granted, making the new compliance date February 23, 2024.
Investigator Fagerburg issued a Compliance Jobsite Inspection Notice, scheduling the inspection for March 4, 2024. During the compliance inspection, Investigator Fagerburg determined that the boulder wall was not between four and five feet tall in all places. Investigator Fagerburg testified that some boulders were added to the wall.
On January 19, 2024, the Registrar issued a Warning Letter to Respondent, claiming that Respondent’s contract was not in compliance with A.R.S. § 32-1158.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).
Complainant and Respondent agreed that Respondent would be allowed to perform corrective work after the Citation and before the Hearing.
Investigator Fagerburg testified that he conducted a prehearing inspection on May 22, 2024, two days before the Hearing, and determined that along the 80-foot portion identified in the contract, the boulder wall was between four and five feet tall, in compliance with the contract.
Investigator Fagerburg testified that during the prehearing inspection, on May 22, 2024, the Complainant was not happy with the construction because the plumb of the wall (meaning, the verticality or the slope of the boulder wall) was not what Complainant expected or wanted. Investigator Fagerburg expressed his opinion that the contract did not establish a standard for the plumb of the wall.
Complainant and Respondent disagreed about whether, and to what degree, a stacked wall was allowed to be sloped under the contract. Complainant testified that prior to construction, Complainant showed Respondent example photographs, which demonstrated a vertically plumbed wall. To the contrary, Respondent testified that Respondent showed drawings and/or photographs to Complainant, which demonstrated some slope in the wall. Complainant admitted that Complainant agreed to allow some “offsetting” of the boulders. Complainant also admitted that, on at least one occasion, Complainant inspected the wall while it was under construction and approved of how the boulder wall looked with the offset boulders.
Complainant testified that only the 80 foot wall was at issue in the hearing, not the portion which extended to the corners of the property.
Administrative notice is taken of Respondent’s prior License record on June 7, 2024. Such prior License record reflects that Respondent’s License No. 334645 was first issued on August 31, 2021 and is active. Such prior 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 did not establish that Respondent’s work departed from or disregarded plans or specifications for the boulder wall. Neither party provided a standard by which this Tribunal could define “stacked” compared to “sloped,” and the record is devoid of evidence to support that the wall was inappropriately sloped other than Complainant’s contested testimony. Therefore, the Complainant did not establish that Respondent was in violation of A.R.S. § 32-1154(A)(2)(a).
The evidence established that Respondent’s work was not in conformity with the Registrar’s professional and workmanlike standards at the time of the jobsite inspection. While Respondent ultimately corrected the work to meet the Registrar’s standards, that was not completed until after deadline in the written directive expired. Therefore, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The evidence established that Respondent’s contract did not contain all of the required information. Therefore, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(1), (4), and (9).
The evidence established that Respondent did not complete the corrective work within the time set forth in the Directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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. 334645 for a period of one day.
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 A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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, June 13, 2024.
/s/ Samuel Fox
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]
Scott Turner
17112 E Las Piedras Way
Rio Verde, AZ 85263
[email redacted]
Arizona Luxury Landscape and Design Inc
31840 N 166th St
Scottsdale, AZ
[email redacted]
By: OAH Staff