ALJDEC - Licensing

2024A-06540-CHC-ROC · Registrar of Contractors · 2024-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeff Thomas,

COMPLAINANT,

v.

Stangers Landscape and Masonry Inc.,

License No. ROC 339944,

RESPONDENT.

No. 2024A-06540-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 25, 2024

APPEARANCES: Jeff and Anja Thomas appeared on their own behalf. Qualifying Party Alexis Higbee and Michael Stanger, Owners, appeared representing Stangers Landscape and Masonry Inc.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Packet).

_____________________________________________________________________

FINDINGS OF FACT

Stangers Landscape and Masonry Inc. (Respondent) is the holder of a CR21 HARDSCAPING AND IRRIGATION SYSTEMS License No. 339944 issued by the Arizona Registrar of Contractors (Registrar or ROC).

On or about October 26, 2023, the parties entered into a contract for landscaping including tile, pool coping, rock, plants, irrigation lines or plants, low voltage lighting and a gas fireplace. Respondent’s work was to follow the pool contractor’s work which included installation of the gas line from which Respondent would tie-in for the fireplace. Complainant gave a deposit and, subsequently, some further monies for specific materials.

On or about January 30, 2024, the pool installation was ready for the coping work, which needed to be completed before the pool contractor could compete the remainder of its work. There followed issues with the materials and poor communication from Respondent as to dates for materials to arrive and installation work to be performed and/or completed. It appears that the coping was completed sometime in June of 2024.

On June 9, 2024, the Registrar received a Complaint against Respondent from Jeff Thomas (Complainant) alleging poor work with respect to the project. On the Complaint, Complainant indicated that work started on April 19, 2024 and was last performed on June 9, 2024.

The Registrar’s Investigator John Smith scheduled a jobsite inspection. After the jobsite inspection on July 22, 2024, Investigator Smith issued a written directive (Directive) dated July 22, to Respondent that provided the following statements:

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 Wednesday, August 7, 2024.

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 reasons1, 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:

(Complaint Items)

Complaint Item 1: “Work should have begun on this contract in early February and completed by the week of March 18th. Work did not even start until Mid-April. This contractor accepted a 60% deposit to purchase all material and approximately 8 months later, we have only seen about 10% of the material. We need help getting this projected completed timely.”

Investigator’s Observations: Verified.

The scope of work per contract includes:

• Install 228 sq ft of Travertine for existing patio

• Install 196 sq ft of Travertine for Right side patio near fireplace

• Install (4) 1x3 Travertine stepping stones

• Install 278 of Travertine on right and left side of pool for lounge chair area and jump off point

• Install 333 sq ft of Travertine of patio extension length of house

• Install 15x21 Artificial Turf, US Product, 16 year warranty includes Camofill for pets with 72’ Travertine border

• Install 23 tons dec rock for side yards and perimeter

• Install 16 (5) gal plants, mix of plants to be picked out by SLM and customer

• (10) Boulders 2x2 and 3x3

• Irrigation includes FEBCO, 1 valve back yard, and SCH40 poly throughout

• (19) Low voltage SOLLOS lights, mix of up lights, path lights, and ledge lights, includes 150w transformer (can be used front and back)

• 8’ long 4’ tall linear fireplace, gas (reference customer picture) 8x8x16 construction stucco and painted to match house, customer to provide insert.

FRONT YARD

• Install (2) 24” box trees

• Install (4) Boulders

• Move existing plants

• Install 2 tons of dec rock to match

• Install 3 tons of rip rap

The contract is dated 10/26/2023

Work was stated to have started 4/19/24

As observed during the ROC Jobsite Inspection, 7/22/2024, Current status of work per contract:

• Work has been started; however, all portions of work are incomplete.

• At least one location of paver lippage that exceed the acceptable tolerance of 1/8 inch.

• At least one paver that is broken

• At least one paver is over-cut around a gutter drain, approximately a 5/8 inch gap.

• The pavers are sloping towards the house foundation.

o Workmanship standards and building codes require impervious surfaces to slope away from a foundation.

 Arizona Workmanship Standards: “Grades shall be established to ensure proper drainage away from a structure.”

 International Residential Code R401.3 Includes: “Impervious surfaces within 10 feet of the building shall be sloped a minimum of 2 percent away from the building.” (emphasis added)

• Note:

o Both parties acknowledged the “Install (4) 1x3 Travertine stepping stones” was “changed” from the respondent’s scope of work.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

(Allegations)

Complaint Item 2: “We are requesting help to make this contractor complete the work they accepted a deposit on or return the deposit.”

Investigator’s Observations: Verified.

On August 22, 2024, the Registrar issued a Citation against Respondent, charging the following possible violations: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(a); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(b); and Ariz. Rev. Stat. § 32-1154(A)(22).

On August 29, 2024, Respondent filed its Answer to the Citation, stating that the project was delayed to the pool contractor having installed the gas line but having installed it in a way that prevented a tie-in for Respondent’s work. Respondent indicated that it had to obtain permit and install another gas line, which work had not been part of its original contract. Respondent indicated that it asked Complainant for a progress payment and that Complainant refused believing that such work had been a part of the parties’ contract. Respondent noted that it had not been informed by Complainant of chipped pavers or any “slope” concerns or drainage concerns. Respondent also noted that, when they would ask Complainant for plant or rock choices, prior to the Directive deadline so Respondent could proceed with work, Complainant indicated that he had been advised by his lawyer to not pay for any further work.

The matter was not resolved by the parties prior to the administrative hearing.

At hearing, Complainant argued that the project was not completed with the major issue remaining being the slope not meeting workmanship standards or applicable code. Complainant acknowledged that Respondent had been able to perform some of the work, but not all, before the deadline. Essentially, Complainant indicated that they were following the allowable complaint process and were not required to allow Respondent to continue to work on the project after the stated directive deadline.

Complainant agreed the travertine had been installed, or substantially completed, only a few days before the jobsite inspection. Complainant argued that Respondent had not corrected the slope issue; Complainant indicated that the do get standing water at the patio on the north side of the house.

Complainant argued that the back yard was “ruined” and they will have to spend more money to correct the tile and sloping issue in order to be able to sell the house in the future, and they would like for Respondent be held responsible for that in order to offset the projected costs to redo the tile and slope.

At hearing, Respondent noted it was 2 days before the deadline when Complainant communicated to it regarding the plants and other “finish” items, which did not give Respondent enough time to complete the project. Respondent indicated that Complainant then would not let them come back to finish the irrigation lines, lighting and planting work.

Regarding the sloping, Respondent indicated that it had completed the travertine and had not observed, or been told about, any water issues or any standing water. Respondent discussed the height and location of the pool being an issue interplaying with the sloping issue. Respondent indicated the pool was at the highest part of the yard and was only seven (7) feet from the house, which did not leave enough room to have sloping meet code.

Respondent requested the opportunity to come back and complete the project, indicating that there was only a couple of days work remaining. Respondent noted that it had not been paid the final amount and they would like to finish the work so it can get paid because Respondent has already paid its workers.

Since the hearing, neither party has advised the Tribunal that they have informally resolved the matter.

Administrative notice is taken of Respondent’s license records on November 14, 2024. Respondent’s licensure records reflect that (a) Respondent’s license was disciplined with suspension (effective September 6, 2024); (b) Respondent was able to resolve one complaint in May 2024; and, (c) there are three open complaints, the instant complaint being one of those open complaints.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 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 taking appropriate corrective action with regard to the items set forth therein, Respondent was required to complete the items by the Directive deadline. While parties often are able to work together to complete the work even beyond a deadline, such did not occur in this case.

10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of the following statutes and rules:

(a) Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 (a), for failure to perform all work in a professional and workmanlike manner; and

(b) Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108(b) for failure to perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive by the Directive deadline. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure 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.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 339944 as follows:

a one week suspension on the effective date of the Registrar’s Order in this matter; and,

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 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, November 14, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

John Smith

[email redacted]

Stangers Landscape and Masonry Inc.

[email redacted]

[email redacted]

Jeff Thomas

[email redacted]

By: OAH Staff