ALJDEC

98F-M1624-ROC · Registrar of Contractors · 1999-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 1999

APPEARANCES: Complainant was represented by attorney Harry Miller; Respondent was represented by owners and operators David and Vicki Bell.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This complaint involves a flagstone walkway and flagstone patios installed by Respondent Dave’s Landscaping at Complainant Therese Zadra’s house. 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 recommending dismissal. FINDINGS OF FACT 1. Complainant hired Respondent to install flagstone on a walkway and patio area at her home. The written contract called for Respondent to install a concrete curb, fix a sprinkler valve, mow and fertilize the lawn, and redo some flagstone. The flagstone portion of the contract provided the following: Redo front walkway with curbing border and level flagstone, add flagstone and curbing in front of window, add curbing and finish flagstone at the back corner patio, remove small flagstone and install large pieces of flagstone and curbing border to back patio.

Through conversation with Respondent, Complainant specified that she wanted large pieces of flagstone used. 2. After Respondent had laid out the stones for the back patio, but before they were installed, Complainant attempted to tell Respondent that the joints between the stones were too large. Early one morning before Respondent had arrived to work, Complainant was on her way to work and had to leave the property. She wrote a note on a piece of cardboard and left it at the patio location. Respondents testified that they never saw the note. When the back patio was completed, Complainant had a conversation with Respondent. She stated that the joints were too large and she was worried about being able to wheel her gas grill across the patio. Respondent answered by telling Complainant that, with a little watering, the granite in the joints would harden and fill in the joints, forming a hard surface. Complainant did not make any further protests until Respondent had completed the walkway and front area, which finished the job. Then, Complainant again stated that the joints were too wide and the stones not level. Respondent showed Complainant that the stones were level and stated that with large irregular pieces of flagstone, narrow joints are not possible without cutting the stone. Complainant was not satisfied, however, and refused to pay the remaining amount due under the contract until Respondent fixed her complaints. 3. Complainant complains that the installation is improper because the joints are much too wide, the granite is coming out of the joints, Respondent did not install a proper base under the stone, and that the stone is cracking. She also complains that Respondent did not repair the sprinkler valve and fertilize as provided in the contract. 4. ROC Inspector Van Bagley performed a jobsite inspection and consulted with a local contractor who installs flagstone. The contractor stated that narrow joints can be achieved, but will cost more either because there would be a cement base and grouted joints, or because the stone would be cut-to-fit, requiring more stone to fill an area and resulting in unused smaller pieces of stone. Inspector Bagley did not issue a Corrective Work Order, finding that the loose granite flagstone installation was not below minimum industry standards and that the cracked stone was likely caused by a car driving on it. 5. Respondent Vicki Bell, who installed the stone with her husband Dave, testified that Complainant did not want the large pieces cut. If Respondent had thought that the stone was to be cut, the price would have been higher because more stone would have been needed. After the job was complete, Respondent offered to redo part of the back patio only, but Complainant refused. Respondent also offered to take smaller pieces and fill in the gaps that Complainant was objecting to. Again, Complainant refused. 6. By agreement, the parties have resolved the complaint about the fertilizer. Furthermore, the evidence does not show that Respondent failed to fix the sprinkler valve. The remaining issue is the flagstone installation. 7. The evidence does not show that the amount of loose granite is excessive or the result of poor workmanship. Rather, it is a homeowner maintenance issue. There is some slight washing-out, but this is normal, especially under a faucet. Respondent did not establish that the granite joints are improper or unworkmanlike. Respondent also did not show that the base under the flagstone is defective. Furthermore, the cracking stone next to the drive area has likely been caused by cars driving on it and people playing basketball on it. This is not Respondent’s responsibility. 8. As to the width of the joints, this is a case of miscommunication between the parties. Each had something different in mind when the contract was created. Thus, both parties are at fault for not clarifying the details of the work. The written contract is not that detailed--no dimensions or specifics are given. But Complainant allowed Respondent to continue the installation in a way that she claims was not acceptable to her. Although she made some comments about the width of the gaps, she did not stop the installation, but accepted Respondent’s explanation of the situation and let it continue. Thus, Complainant accepted the work and cannot now change her mind. Furthermore, the evidence does not show that the installation done by Respondent falls below minimum workmanship standards. CONCLUSIONS OF LAW 1. Complainant bears 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). Complainant has not met this burden. 2. The evidence does not support a determination that Respondent has violated any provision of A.R.S. § 32-1154(A) as charged in the Citation and Complaint. The flagstone is apparently not installed the way that Complainant would like it to be. But the evidence does not show that Respondent installed it that way while knowing that Complainant did not want it like that. Rather, the evidence shows that Complainant allowed Respondent to install large, uncut pieces and did not make much of an effort to clarify her wishes. The record shows that Respondent would have made modifications to the installation had Complainant been clear at the beginning about what she wanted. RECOMMENDED ORDER Based on the above findings and conclusions, it is hereby recommended that the Citation and Complaint in Case No. 98-M1624 against Dave’s Landscaping be dismissed. Done this 2nd day of March 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of March 1999, to:

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

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826