ALJDEC - Licensing

2024A-11465-CHC-ROC · Registrar of Contractors · 2025-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan Schmutzer,

COMPLAINANT,

v.

Arizona Turf Professionals LLC

License No. ROC 328529,

RESPONDENT.

No. 2024A-11465-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 28, 2025.

APPEARANCES:

For Complainant: Ryan Schmutzer.

For Respondent: Evan Tompkins.

For the Registrar of Contractors: Michael Wiskow.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits. Respondent’s Exhibits.

_____________________________________________________________________

FINDINGS OF FACT

Arizona Turf Professionals LLC (Respondent) was the holder of License No. 328529 issued by the Arizona Registrar of Contractors (Registrar) on April 17, 2020.

On or about March 14, 2024, Ryan Schmutzer (Complainant) entered into a contract with Respondent for, among other things, construction of a pickle ball court.

On or about October 10, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator Mike Wiskow, who issued a Jobsite Inspection Notice on October 18, 2024, scheduling the inspection for November 14, 2024.

Investigator Wiskow conducted the jobsite inspection on November 14, 2024, and Respondent was present. Following the inspection, Investigator Wiskow issued a Written Directive From the Registrar to Respondent on November 14, 2024, that provided as follows:

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

Complaint Item: 2 - Irrigation Zone 3 is not working.

Investigator’s Observation: Confirmed. Irrigation Zone 3 is not working as a result of the concrete work.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 3 - Landscape lighting does not have power, lines are cut.

Investigator’s Observation: Confirmed. Landscape lighting is not working as a result of the concrete work.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 4 - Pavers are broken and stacked in a pile.

Investigator’s Observation: Confirmed. There are pavers at the new concrete that need to be installed.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 5 - Turf is not secured to concrete pad.

Investigator’s Observation: Confirmed. The turf has been uninstalled. The turf should be reinstalled.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 6 - Concrete around play structure was damaged.

Investigator’s Observation: Confirmed. Curb was moved by equipment. Damaged area should be repaired.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 7 - Hump in concrete.

Investigator’s Observation: Confirmed. The southeast quadrant of the concrete has a hump in it.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship

Complaint Item: 8 - Multiple cracks in concrete.

Investigator’s Observation: Confirmed. There are 4-5 areas with cracking that exceeds the minimum workmanship standards.

Contractor should repair by 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.

A.R.S. § 32-1154(A)(3) - R4-9-108(A) Workmanship.

The Written Directive required Respondent to notify Investigator Wiskow of Respondent’s compliance with the directive prior to 5:00 p.m. on December 2, 2024.

On December 3, 2024, the parties agreed that no corrective work had been performed on the project. However, Complainant allowed Respondent to continue working on correcting the issues.

On February 26, 2025, Investigator Wiskow conducted a prehearing inspection. During the inspection, he determined that all of the corrective items had been satisfied except for 3. Complainant disagreed about 7 and 8, and Respondent disagreed about 3.

On December 20, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A); A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on January 3, 2025. Respondent’s Answer argued that Complainant denied access prior to the Directive period, that the investigator did not perform a compliance inspection, and denying that Respondent performed poor work.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On February 11, 2025, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for March 13, 2025.

The hearing was continued and held on April 28, 2025.

Investigator Wiskow testified in support of his investigation. He testified that Directive Items 7 and 8 looked correct during the prehearing inspection, but he did not take a close look or use a level. He testified that the exterior lighting did not work when he looked at it during the prehearing inspection.

Complainant testified that Respondent had not corrected Directive items 7 and 8, testifying that Respondent did not make changes to the concrete and that the paint was cracking.

Respondent’s witnesses testified that the light worked and the issue was likely the WiFi timer. Respondent’s witnesses testified that Directive Items 7 and 8 had been corrected.

Administrative notice was taken of Respondent’s prior License record on May 15, 2025. According to that record, Respondent’s License No. 328529 was active. The license had two resolved cases and no disciplined cases.

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. Respondent bears the burden of proof to establish an affirmative defense 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.”

During the Directive period, homeowners cannot refuse access to a contractor and seek discipline against that contractor. Refusing access impinges on the contractor’s right to defend itself by correcting its work within the Registrar of Contractors process. However, homeowners are not required to give a contractor free reign of the property: they may set reasonable limits on access, while providing the contractor sufficient time and access to correct the issues by appropriate means. Homeowners may refuse access to a contractor prior to and after the Directive period, unless such refusal constitutes an abuse of the process.

Investigator Wiskow’s observations and expertise are deemed the most reliable regarding each of the Directive items.

The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Compliance Item 3.

The preponderance of the evidence established that Respondent failed to comply with this chapter in violation of A.R.S. § 32-1154(A)(12), namely the contract requirements in A.R.S. § 32-1158. Several required components are not present in Respondent’s contract.

The preponderance of the evidence 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), specifically regarding Compliance Item 3.

The preponderance of the evidence failed to establish that Complainant denied Respondent access to the property during the directive period or that Complainant abused the process by limiting access before or after the Directive Period.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for one day Respondent’s License No. 328529.

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, May 19, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mike Wiskow

[email redacted]

Wesley M Cox Esq.

Tiffany & Bosco P.A.

[email redacted]

Ryan Schmutzer

[email redacted]

By: OAH Staff