ALJDEC - Licensing
2024A-06655-CHC-ROC · Registrar of Contractors · 2024-11-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Charlene Joseph,
COMPLAINANT
v.
Stangers Landscape and Masonry Inc.
License No. ROC 339944,
RESPONDENT
No. 2024A-06655-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 28, 2024
APPEARANCES: Charlene Joseph, Complainant; Andrew Joseph, Complainant Witness; Michael Stanger on behalf of Respondent; Alexis Higbee, Respondent Witness; John Smith, Registrar of Contractor Investigator
ADMINISTRATIVE LAW JUDGE: Nicole Robinson
EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet); Respondent Exhibit 1
FINDINGS OF FACT
Stangers Landscape & Masonry, Incorporated (Respondent) is the holder of License No. 339944, issued by the Arizona Registrar of Contractors (Registrar or ROC) on August 5, 2022. Respondent held a CR-12 Hardscaping and Irrigation Systems license.
On April 5, 2024, Charlene Joseph (Complainant) contracted with Respondent on a major backyard renovation project. The total amount of the project was $20,747.00 and Complainant put down a payment of $12,000.00.
The contract stated in part, “Initial deposit of (60%) of total project cost will be required upon signature of this agreement. Progress payments may be required depending on scope of work and will be invoiced separately within 2 business days’ notice. Final payment will be required immediately on completion of work.”
On April 24, 2024, Respondent began work on the project. The verbal commitment at the time of the contract signing was to have the project completed within one and a half weeks.
On or about June 11, 2024, Complainant filed a Licensed Complaint Form (Complaint) with the Registrar indicating her complaints regarding Respondent’s construction work at her home residence in Tucson, Arizona.
On June 26, 2024, Respondent emailed Complainant stating “Pavers will be done the end of next week. We will be working on the fountain this week.”
On June 27, 2024, an email string went back and forth between Complainant and Respondent where Respondent acknowledged that a neighbor’s project was leading to delays in Complainant’s project. In addition, Respondent reminded Complainant that he could ask her for progress payments throughout the project, above and beyond the $12,000.00 deposit that they already paid.
After receiving the Complaint, Registrar’s Investigator John Smith scheduled a jobsite inspection that was conducted on July 12, 2024. During this inspection, Respondent verbally committed to having the project complete in less than two weeks.
Following the jobsite inspection, Investigator Smith issued a Written Directive (Directive) on July 16, 2024 verifying that some corrective work was needed as follows:
Complaint Item 1: “Alexis Higbee told me that my job would be done by May 3, 2024 after I told her that I was considering not signing with their company because I want my backyard done asap. on May 17th, I questioned Alexis we nothing was completed. She accused me of yelling and nothing had been done. Other than leveling rocks placed. Excuses only for weeks”
Investigator’s Observations: Verified.
The scope of work per contract includes:
• Install 10 tons of decorative rock (customer to pick color)
• Snake proof 76’ of fence line 2’ high, 1 drain block and 1 gate
• Install gas line from stub out to future grill approx... 25 feet with permit
• Install water supply for future fountain from hose bib 35 ft
• Run electrical from main panel to future fountain and pergola approx.. 158’
• Install approx. 400 sq ft of Artificial Turf, US Product, 16 year warranty, includes Camofill for Pets
• 76 linear feet of Border for turf paver border
• Install 19x19 Pavers under kitchen window includes 1/4” minus base
• Install 10x19 Pavers extension from existing patio 1/4” minus base
• Install 11x19 Pavers over existing patio
• Install (24) 1x3 Pavers stepping stones from side gate to back yard
• Fountain 8’ x 4’ 8x8x16 stucco, w/flat painted to match
• 3 powerfalls
The contract includes:
• Date: 4/5/23
• Start Date 4/22/23
• Finish Date 5/3/23
As observed during the ROC Jobsite Inspection, 7/12/2024, Current status of work per contract:
• Work has been performed and work is in progress; however, all portions of work are incomplete, including but not limited to:
The contractual scope of work
Permit(s) for gas, electric, and plumbing
Providing subcontractor information for gas and electric
• Note:
Both parties acknowledged the snake proof fencing was removed from the respondent’s scope of work.
. . . .
Complaint Item 2: “pavers not installed”
Investigator’s Observations: Verified.
The scope of work per contract includes:
• 76 linear feet of Border for turf paver border
• Install 19x19 Pavers under kitchen window includes 1/4” minus base
• Install 10x19 Pavers extension from existing patio 1/4” minus base
• Install 11x19 Pavers over existing patio
• Install (24) 1x3 Pavers stepping stones from side gate to back yard
The contract includes:
• Date: 4/5/23
• Start Date 4/22/23
• Finish Date 5/3/23
As observed during the ROC Jobsite Inspection, 7/12/2024, Current status of work per contract:
• Work has been performed and work is in progress; however, all portions of work are incomplete, including but not limited to:
The contractual scope of work
Permit(s) for gas, electric, and plumbing
Providing subcontractor information for gas and electric
. . . .
Complaint Item 3: “turf not installed”
Investigator’s Observations: Verified.
The scope of work per contract includes:
• Install approx. 400 sq ft of Artificial Turf, US Product, 16 year warranty, includes Camofill for Pets
The contract includes:
• Date: 4/5/23
• Start Date 4/22/23
• Finish Date 5/3/23
As observed during the ROC Jobsite Inspection, 7/12/2024, Current status of work per contract:
• Work has been performed and work is in progress; however, all portions of work are incomplete, including but not limited to:
The contractual scope of work
Permit(s) for gas, electric, and plumbing
Providing subcontractor information for gas and electric
. . . .
Complaint Item 4: “water fountain not installed”
Investigator’s Observations: Verified.
The scope of work per contract includes:
• Install water supply for future fountain from hose bib 35 ft
• Fountain 8’ x 4’ 8x8x16 stucco, w/flat painted to match
• 3 paverfalls
The contract includes:
• Date: 4/5/23
• Start Date 4/22/23
• Finish Date 5/3/23
As observed during the ROC Jobsite Inspection, 7/12/2024, Current status of work per contract:
• Work has been performed and work is in progress; however, all portions of work are incomplete, including but not limited to:
The contractual scope of work
Permit(s) for gas, electric, and plumbing
Providing subcontractor information for gas and electric
. . . .
Complaint Item 5: “nothing has been done other than gas line installation and leveling rocks havd been placed”
Investigator’s Observations: Verified.
The scope of work per contract includes:
• Install 10 tons of decorative rock (customer to pick color)
• Snakeproof 76’ of fence line 2’ high, 1 drain block and 1 gate
• Install gas line from stub out to future grill approx... 25 feet with permit
• Install water supply for future fountain from hose bib 35 ft
• Run electrical from main panel to future fountain and pergola approx.. 158’
• Install approx. 400 sq ft of Artificial Turf, US Product, 16 year warranty, includes Camofill for Pets
• 76 linear feet of Border for turf paver border
• Install 19x19 Pavers under kitchen window includes 1/4” minus base
• Install 10x19 Pavers extension from existing patio 1/4” minus base
• Install 11x19 Pavers over existing patio
• Install (24) 1x3 Pavers stepping stones from side gate to back yard
• Fountain 8’ x 4’ 8x8x16 stucco, w/flat painted to match
• 3 powerfalls
The contract includes:
• Date: 4/5/23
• Start Date 4/22/23
• Finish Date 5/3/23
As observed during the ROC Jobsite Inspection, 7/12/2024, Current status of work per contract:
• Work has been performed and work is in progress; however, all portions of work are incomplete, including but not limited to:
The contractual scope of work
Permit(s) for gas, electric, and plumbing
Providing subcontractor information for gas and electric
• Note:
Both parties acknowledged the snakeproof fencing was removed from the respondent’s scope of work.
The Registrar set forth August 1, 2024 as the deadline for Respondent’s compliance with the Directive.
On August 5, 2024, a compliance jobsite inspection was scheduled by the Registrar which mandated Complainant’s attendance to determine the current status of the items listed on the issued Directive. Respondent did not attend this voluntary meeting.
On August 6, 2024, Registrar issued a Citation charging Respondent’s license with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(2)(a); Ariz. Rev. Stat. § 32-1154(A)(2)(b); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A) and Ariz. Admin. Code R4-9-108(B); Ariz. Rev. Stat. § 32-1154(A)(16); and Ariz. Rev. Stat. § 32-1154(A)(22). The Citation informed Respondent that a written answer must be filed no later than the deadline of August 21, 2024.
On August 22, 2024, Respondent sent an email to Complainant and Investigator Smith which stated, “We will be working to wrap up your project next week.”
On August 29, 2024, Respondent filed its answer (Answer) in response to the Citation with the Registrar. Respondent stated, “To date we have not installed any electrical, we have not submitted for permitting as this project came to a halt.” Respondent further stated, “The delays from all of our other projects were brought to the attention of [Complainant].” The Respondent further stated, “we had been delayed from not only non-payment entirely from customers, but also customers denying to pay their progress payments.”
The matter was not resolved informally by the parties and the matter proceeded to administrative hearing.
Prior to the complaint filed by Complainant, the parties agreed that Complainant would take over the snake proof wiring part of the project, a new amended contract was not presented to Complainant.
The Respondent did not separately invoice Complainant for a progress payment throughout the tenure of the project.
Administrative notice is taken of Respondent’s prior License record and such prior License record reflects that Respondent’s License No. 339944 was first issued on August 5, 2022. Effective September 6, 2024, Respondent’s License No. 339944 was suspended for disciplinary reasons. Such prior License record also reflects there are three open complaints, one prior resolved/settled complaint, and one prior complaint resulting in discipline against Respondent’s license.
REASONING & CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Respondent’s suspended license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint.
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 established that Respondent did not complete the project in accordance with the plans without Complainant’s consent or the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the plans and the applicable building code in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a) and (b).
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) and (B).
The evidence established that Respondent entered into a contract for electrical, which is not permitted work under a CR-21 license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of Ariz. Rev. Stat. § 32-1154(A)(16).
The evidence established that Respondent did not 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. 339944 for a period of two 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)(5), 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/ Nicole Robinson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Stangers Landscape and Masonry Inc.
[email redacted]
Charlene Joseph
[email redacted]
John Smith, ROC Investigator
[email redacted]
By: OAH Staff