ALJDEC

97F-M1846-ROC · Registrar of Contractors · 1998-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 15, 1998

APPEARANCES: Patricia Gross appeared on behalf of Complainants; Larry Motter, Managing Partner and Qualifying Party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This case concerns a complaint about backyard landscaping done by Respondent Sonoran Landesign, LLC, at the home of Complainants Steven and Patricia Gross. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. In December 1996, Respondent performed landscaping work at Complainants’ home in Gilbert, Arizona. The work included planting trees, shrubbery, and sod, designing and installing a sprinkler and drip system, flagstone and brick work, and building a backwash pit for a swimming pool and an outdoor barbecue. Complainants were not happy with the results of the work and filed the complaint at issue here. 2. ROC Inspector Van Bagley inspected Complainants’ backyard on August 12, 1997. He found that several corrections needed to be made, the details of which are described below, and issued a Corrective Work Order (CWO) on August 22, 1997. Respondent corrected many of those items. When the ROC did not hear back from Complainants that the repairs were unsatisfactory, it closed the complaint on September 23, 1997, and notified both parties. In December 1997, the ROC reopened the complaint at the request of Complainants, who then requested a hearing. When Inspector Bagley re-inspected the work on July 14, 1997, he found that some items still needed to be corrected. 3. The evidence shows that Respondent completed the following items in the CWO: sprinklers had been corrected to give the proper coverage, leaks in the drip line had been repaired, the PVC pipe in the backwash pit had been repaired, and brick work had been repaired. 4. Some items quite obviously continue to need repair. Both the barbecue drainage pipe area and the block wall need to be painted. The leak by the valve box needs to be fixed. The wiring to the electrical outlet at the barbecue must be redone. And, the stucco patch at the corner of the house must be corrected and finished. Respondent stated at the hearing that it is willing to make those repairs. 5. The evidence shows that there is at least one sprinkler head that is too high. Respondent needs to lower any heads that are too high. Complainant testified that when she mows the lawn she chops off some of the heads. Although Respondent should lower heads that are too high, Respondent is not responsible for replacing any sprinkler heads that Complainants damaged by mowing over them. Complainants have a duty not to damage the heads and should avoid them with the mower. Any damages caused by not avoiding them with the mower are Complainants’ responsibility. 6. One issue at the hearing was the size of the backwash pit. That issue was not raised in the complaint. Furthermore, the evidence does not show that the pit is too small or is not working as planned. The record does not support a finding that Respondent should make any corrections to the backwash pit. 7. Another issue is the flagstone “pedestal.” The flagstone at the top of it is cracked and uneven, and the grout is cracked. Larry Motter testified that Respondent is willing to investigate the cause further and redo this item. The evidence shows that the top of the pedestal does not meet minimum workmanship standards and should be corrected. 8. The evidence also shows that there are substantial cracks in the flagstone grout, especially where the stone meets the Kool deck. These cracks are beyond acceptable limits and do not meet minimum workmanship standards. 9. The record shows that Respondent made a good faith effort to comply with CWO. CONCLUSIONS OF LAW 1. Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met that burden on several of the items. 2. The evidence shows that Respondent has violated A.R.S. § 32- 1154(A)(3), violation of a rule, namely Arizona Administrative Code (A.A.C.) R4-9-108, and (A)(7), wrongful conduct that harmed Complainants. 3. The evidence does not show that Respondent has violated A.R.S. § 32-1154(A)(23), failure to comply with a Corrective Work Order. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class C-21 license 111012 be suspended beginning the effective date of the Registrar’s Order until Respondent has accomplished appropriate and effective remedial work to correct the deficiencies noted in Findings of Fact 4, 5, 7, and 8 above. IT IS FURTHER RECOMMENDED that if Respondent completes the corrections on or before the effective date of the Registrar’s Order, the license suspension shall not take place and this matter shall be closed.

Done this 3rd day of September 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of September 1998, to:

Michael P. Goldwater, Director ATTN: Joyce Armijo Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826