ALJDEC decisions subject to certification as final

CHC-2016A-4546-ROC · Registrar of Contractors · 2017-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Cathy Byrd,

COMPLAINANT,

v.

Landscape Images LLC,

License No. CR21.207857-D,

RESPONDENT

No. CHC-2016A-4546-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 15, 2016, at 1:00 p.m.

APPEARANCES: Cathy Byrd (“Complainant”) appeared on her own behalf; Landscape Images LLC (“Respondent”) appeared through Sheree McNeil, its qualifying party/member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about June 1, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.207857-D for dual landscaping and irrigation systems to Respondent.

On or about November 14, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed fifteen instances of poor work on a backyard landscaping project at Complainant’s house at 20289 E. Sunset Court, Queen Creek, Arizona 85142. According to the complaint, Respondent had been paid $49,801.57 of the $61,901.57 contract price. Respondent had started work on July 11, 2016, and last performed work on the project on September 15, 2016.

The Registrar assigned the complaint to its Investigator, Mike Crow (“Investigator Crow”), for investigation. On or about December 15, 2016, Investigator Crow performed a jobsite inspection.

On January 6, 2017, Investigator Crow issued a Directive, which required Respondent to correct by appropriate means certain workmanship deficiencies, in relevant part as follows:

1. A permit should be acquired and then the jobsite should be inspected by the proper municipality's building official and signed off accordingly.

2. International Residential code R105.1 states Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical, or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.

3. Waterline tile has a bow in it behind the spa.

Respondent shall correct by appropriate means.

4. Tile throughout the entire deck have large gaps, cracks, not properly secured and poor workmanship on the cutting.

Respondent shall correct by appropriate means.

5. Pillars to BBQ on left hand side is 1 foot and 1 inch wider compared to the other side.

Pillars on west side are 1 inch wider.

Respondent shall correct by appropriate means.

6. Pillars on right hand side of bbq measure 10 feet 1 inch wide and the opposite side measure 9 feet 10 inches.

Pillars on west side are 1 inch wider.

Respondent shall correct by appropriate means.

7. Stone on bbq in several areas was not installed properly and is crooked and bows out.

Respondent shall correct by appropriate means.

8. Barbeque equipment not properly secured and installed.

Respondent shall correct by appropriate means.

9. Pavers around BBQ pit steps are skinnier on the left side.

Respondent shall correct by appropriate means.

10. Steps at the deck off the back of the house are incomplete and the under step lighting is not functional.

Respondent shall correct by appropriate means.

11. Pool coping stones installed around the entire pool were rounded by them poorly.

Respondent shall correct by appropriate means.

. . . .

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

The deadline in the Directive for Respondent to correct its work was on or before 5:00 p.m. on January 23, 2017.

Respondent did not comply with the January 6, 2017 Directive. Investigator Crow sent the complaint to the Registrar’s Legal Department.

On January 25, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(16), and A.R.S. § 32-1154(A)(22).

Respondent filed a written answer to the Citation, denying any statutory violations and affirmatively alleging that Complainant had fired Respondent and terminated the contract in mid-September 2016, and Complainant had demanded over $15,000.00 to resolve the complaint. In addition, Respondent stated that permits were Complainant’s responsibility.

The Registrar referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on May 15, 2017. Complainant testified. Respondent presented the testimony of Sheree McNeil, its qualifying party/member. Investigator Crow testified.

Additional Hearing Evidence

Respondent contracted to install hardscape in Complainant’s backyard, including pavers, stone at the water line of the pool that another contractor had installed, a sunken kitchen area, including a gas barbeque and pillars, steps to the sunken barbeque area and off the back of the house, a 3’ retaining wall, and coping stones around the pool.

Complainant was her own general contractor on the project and hired other contractors to build the pool and install the gas lines to the barbeque. A permit had been obtained for the pool, but not for a retaining wall that Respondent installed.

The Registrar has promulgated A.A.C. R2-9-104(B), which defines the scope of a dual CR21 landscaping and irrigation systems license as follows:

This classification allows the licensee to treat, condition, prepare, and install:

1. Topsoil

2. Plants and decorative vegetation

3. Non-loadbearing concrete

4. Uncovered patios, walkways, driveways made of brick, stone, pavers or gravel

5. Wooden decks no higher than 29 inches above finish grade

6. Decorative garden walls up to six feet from finish grade

7. Fences and screens up to six feet from finish grade

8. Retaining walls up to three feet from the finish grade of the lower elevation

9. Wood-burning fire pit no higher than 16 inches above finish grade

10. Low voltage landscape lighting

11. Water features that are not attached to swimming pools; including any necessary: electrical wiring of 120 volts or less, connection to potable water lines, backflow prevention devices, hose bibs, excavating, trenching, boring, backfilling, or grading

12. Irrigation systems, including any necessary: electrical wiring of 120 volts or less, connection to potable water lines, backflow prevention devices, hose bibs, excavating, trenching, boring, backfilling, or grading

This classification does not allow the licensee to install, contract for, or subcontract new electrical service panels, gas or plumbing lines, blasting, outdoor kitchens, gazebos, room additions, swimming pools, pool deck coatings, barbeques, concrete driveways, load bearing walls, or perimeter fencing.

Investigator Crow testified that Respondent’s construction of the sunken kitchen, barbeque, pillars, and stone installation at the bowed water line of the pool were beyond the scope of its CR21 license and that this work would have required a general contracting license.

Investigator Crow testified that although the stone installation at the bowed water line was beyond the scope of Respondent’s CR21 license and it had not constructed the pool, it was still responsible for the deficiency because it accepted the surface prepared by the pool contractor when it installed the stone on the bowed surface left by the pool contractor.

Mrs. McNeil testified that when Respondent obtained its license in 2005, all the work on its contract with Complainant would have been within the scope of its license.

Investigator Crow did not know whether the Registrar had amended A.A.C. R2-9-104(B) to change the scope of a CR21 license. However, he testified that a licensed contractor is responsible for keeping current with the Registrar’s regulations defining the scope of its license.

Investigator Crow testified that although the installation of a 3’ retaining wall was within the scope of Respondent’s CR21 license, this work required a permit. Investigator Crow testified that the International Residential Code makes the property owner responsible for obtaining necessary permits. However, if the property owner fails to obtain a necessary permit, the contractor should not proceed with its work until the permit is obtained.

Complainant acknowledged that she was frustrated with the pace of Respondent’s work on the project and that nine weeks after Respondent started the project, on September 14, 2016, she fired Respondent and asked it to remove its materials and equipment from the project.

Mrs. McNeil testified that after Complainant fired Respondent from the job, her only discussions with Complainant concerned money. Mrs. McNeil disputed the amounts of payments that Complainant alleged in the complaint that she filed with the Registrar because some of the monies were for materials that Complainant was required to provide under the parties’ contract, not payments to Respondent.

Investigator Crow testified that he asked Complainant at the December 15, 2016 jobsite inspection whether she would allow Respondent to return to the project to correct the items if a Directive was issued and explained that if she refused to allow access, her complaint could be dismissed. Investigator Crow testified that at the jobsite inspection, Complainant agreed to provide access and that Respondent’s representative agreed to correct any items that it was directed to correct. The parties witnesses did not dispute Investigator Crow’s account.

Investigator Crow acknowledged that after the January 6, 2017 Directive was issued, Mrs. McNeil contacted him and informed him that Respondent had not received the Directive until January 11 or 12, 2017, and that it needed additional time to complete repairs. After Investigator Crow refused to allow additional time, Mrs. McNeil became quite upset.

Mrs. McNeil testified that Respondent had other jobs going and that it could not pull its crews off the other jobs to perform repairs. Mrs. McNeil testified that in any event, there was not enough time left before the deadline on the Directive for Respondent to complete repairs. Mrs. McNeil acknowledged that Respondent did not take any action to comply with the January 6, 2017 Directive after Investigator Crow refused to extend the compliance time.

Investigator Crow testified that he understood that the project had been substantially completed by another contractor hired by Complainant.

Complainant acknowledged that she had hired another contractor to substantially complete the project, but testified that the new contractor had not completed or repaired any of the items on the January 6, 2017 Directive. Because Respondent had not done anything to comply with the Directive, Investigator Crow did not perform a compliance or prehearing jobsite inspection.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. On this date, Respondent’s license is current and in good standing. The Registrar has never disciplined Respondent’s licenses, although the license has been administratively suspended five times for non-renewal and one time for lack of bond.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Complainant established that Respondent constructed the 3’ retaining wall when a necessary permit had not been obtained. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2).

Complainant established that Respondent’s work on Item Nos. 2-10 on the January 6, 2017 Directive did not comply with the Registrar’s or industry standards. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

“‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.” “’Knowingly’ means, with respect conduct or circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.” It has long been the law in Arizona that “’[n]otice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”

Respondent was not familiar with the scope of its CR21 license. Complainant therefore established that Respondent knowingly contracted beyond the scope of its license when it contracted to install and installed the sunken kitchen, barbeque, pillars, and stone installation at the bowed water line of the pool. Complainant thereby established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(16).

Complainant established that Respondent did not attempt to comply with the January 6, 2017 Directive. Respondent did not establish the Complainant refused to provide reasonable access for it to comply with the Directive. Complainant therefore established cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Respondent Landscape Images LLC’s License No. CR21.207857-D shall be suspended for three business days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 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 Order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 five days from the date of that certification.

Done this day, May 18, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors