ALJDEC

99F-1607-ROC · Registrar of Contractors · 1999-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 1999 APPEARANCES: The Complainant appeared personally. Respondent was represented by his attorney, Jeffrey Proper. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is the holder of License No. 119766, a Class C-21R Landscaping license. It is a restricted license that permits Respondent to only perform landscaping contracting. 2. On or about March 25, 1999, Complainant and Respondent entered into a written agreement for landscape designing, landscaping and irrigation work. 3. The scope of work to be performed by Respondent included the following: landscape design; landscaping per the design with the deletion of stepping stones and the use of ¼” minus granite with soil lock; and the installation of a drip irrigation system from an existing timer. The total contract price was $22,700.00. 4. After Respondent completed the project, Complainant filed a Complaint with the Registrar of Contractors alleging that Respondent had violated provisions of the State’s contracting laws on the project. The Complaint alleges that Respondent did not complete the project; that there are leaks in the drip irrigation system; that granite is eroding; and that plants are dying. 5. As a result of the filed Complaint, the Registrar of Contractors’ originally assigned inspector performed a jobsite inspection to view the alleged deficient workmanship. That inspector issued a Corrective Work Order directing Respondent to perform remedial work to the following areas: determine the cause of the leaks in the drip system and correct it; and replace all dead plants. The inspector further determined that there was insufficient information presented for him to determine whether Respondent had completed the project. The inspector also determined that the granite erosion was caused by nature not within the Respondent’s control. 6. Respondent has replaced the dead plants. 7. Respondent subcontracted the irrigation work to A to Z Landscaping. That subcontractor holds a Class C-21 Landscaping and Irrigation license. However, there is no evidence to establish that the subcontractor was properly licensed at the time the irrigation work was performed. 8. Respondent is found to have exceeded the scope of his Class C-21R Landscaping license by contracting for irrigation work. Such irrigation work is further found not to be incidental to the scope of landscaping work permitted under Respondent’s restricted license. 9. It is determined that Respondent caused his irrigation subcontractor to install a valve and drip irrigation lines which were tied into an existing irrigation system. 10. Calcium chloride was applied to the granite to stabilize it in place. There is credible evidence that calcium chloride absorbs available moisture. There are areas of granite with calcium chloride that appear to be moist at times. Some areas are located without any irrigation in the vicinity. It is determined that those areas are affected by the absorption of available moisture by the calcium chloride and not due to any leakage in the newly installed irrigation system. 11. Respondent contracted to install quarry select granite boulders to form a retaining wall for Complainant’s golf putting green. Instead of installing such boulders, Respondent’s workers removed boulders located on Complainant’s property for use in the retaining wall. Respondent claims that the Complainant consented to the substitution of boulders located on the property. Complainant testified that he gave no such consent. There is no evidence that the parties ever executed a written change order for the substitution of the boulders. It is determined that Respondent is responsible for the removal of the installed local boulders and the installation of quarry select boulders as provided for in the specifications. 12. The project specifications required Respondent to install a brown brick header around the perimeter of Complainant’s putting green. Respondent install rocks instead of brown brick. Respondent claims that Complainant agreed to the change in product. Complainant testified that he did not approve the change. There is no evidence of a written change order. It is determined that Respondent is responsible for the removal of the rock border and the installation of the brown brick header as specified. 13. Respondent is deemed to have substantially complied with the Registrar’s written directive. 14. Respondent’s act of contracting for irrigation work outside the scope of his Class C-21R Landscaping license and his failure install the quarry select granite boulders and brown brick border are deemed wrongful acts which have substantially injured Complainant. 15. Any allegation contained in the Complaint which is not specifically addressed above is deemed to either lack sufficient evidence of record to support a finding of a statutory violation, to meet minimum workmanship standards, or to have been appropriately corrected or addressed by Respondent.

CONCLUSIONS OF LAW

1. Respondent’s contention that the irrigation work performed on this project was allowed to be performed under his Class C-21R Landscaping license is unpersuasive. The Registrar of Contractors issues the following licenses for landscaping and irrigation: a Class C-21 Landscaping and Irrigation license; a Class C-21R Landscaping license; and a Class C-21R Irrigation license. The latter two licenses are restricted to the scopes of landscaping and irrigation respectively. If Respondent performs irrigation work, he is required to possess either a Class C-21R Irrigation license or a Class C-21 Irrigation and Landscaping license. 2. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. §32-1154 (A)(7) and (17). 3. The evidence of record does not establish that Respondent violated the provisions of A.R.S. §32-1154 (A)(23).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that commencing on the effective date of the Order entered in this matter that Respondent’s Class C-21R Landscaping license be suspended until the Registrar of Contractors receives written proof that the items set forth in Findings of Fact Nos. 11 and 12 above have been appropriately rectified by Respondent. It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place and the Citation and Complaint shall be closed. It is further recommended, in addition to the above-provided penalty, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods in the amount of $1,000.00, such bond or deposits to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 24 month period and only if no claims are then pending.

Done this day, July 20, 1999.

______________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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