ALJDEC

00F-RF0228-ROC · Registrar of Contractors · 2000-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2000. APPEARANCES: Madeline Ross, Complainant. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ FINDINGS OF FACT 1. Madeline and Gordon Ross hired Master Curb Landscaping, the Respondent, to install landscaping, a drip system, gravel, plants and a sidewalk at their home. Master Curb Landscaping did not complete the job. The Rosses paid them $10,500. 2. When Master Curb refused to return and complete the work and correct some items, the Rosses filed a Complaint with the Registrar of Contractors, ultimately resulting in Respondent’s license suspension. 3. On December 6, 1999, the Rosses filed a Recovery Fund Claim for reimbursement for the unfinished work. They hired Fernie’s Landscape to replace some plants, stake a tree, add some more rock to an area that did not have enough, patch an irrigation leak, place a pipe to drain irrigation away from the flooded courtyard, and make a small trench to assist in draining the courtyard. The Rosses paid Fernie’s Landscape $1,344 for the repair work. The Registrar of Contractors initially declined to reimburse this money because Fernie’s Landscape was not a licensed contractor. 4. The Rosses also requested money from the fund for repairing damage to the sidewalk. An Registrar of Contractors Inspector, Van Bagley, looked at the sidewalk and reported that the problem was due to “effervescence”. Presumably he was referring to efflorescence. He believed there to be no way to avoid this and recommended denying recovery for that problem. 5. The Rosses requested a hearing on the denial of their Recovery Fund Claim. The only person who appeared at hearing was Madeline Ross. She introduced evidence at hearing to show that Fernie’s Landscape did not do landscaping work that required a license but did in fact only do maintenance and small repair work that is in the context of their business. Further, she established that she was unable to get any other estimates on the cost of that work. She also presented evidence that established that the etchings in her concrete sidewalk were etchings from constantly flooding water and not efflorescence. She is requesting $1,355 for the gardening done by Fernie’s Landscape and $2045 to repair the sidewalk. The lowest bid on the sidewalk was $874. 6. Ms. Ross also presented evidence that Respondent wrote the contract between the parties giving a $2000 plant allowance but only put in plants in the amount of $963. She argued that it was Respondent’s fraud or wrongdoing to charge her for the full plant allowance and refuse to provide it. She requests an additional $1037 from the fund for this. CONCLUSIONS OF LAW 1. The Registrar of Contractors is empowered to determine and award proper payment to Complainants from the Contractors’ Recovery Fund for the purpose of remedying a violation by a contractor pursuant to A.R.S. § 32-1154(E). 2. In this case, Respondent violated A.R.S. §32-1154(A) by doing a wrongful or fraudulent act when he refused to supply all the plants allowed in the contract, and by failing or refusing to correct his work. The only remaining issue is the amount that Complainants should be paid from the fund. 3. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Since Complainant Madeline Ross was the only person to appear at hearing, there was nothing in the record to contradict her testimony or question her conclusions. Therefore, it must be taken as established that Fernie’s Landscape did not violate any laws regarding doing work requiring a license. Fernie’s Landscape bill also was established to be a reasonable estimate for completion of the work by a licensed contractor. Since the etching on the sidewalk can be repaired at $784, and since it was clearly established that the damage was NOT from efflorescence but was from etching caused by flooding (and the flooding caused by an improperly installed drip system and drainage ditch), that is the amount that should be paid from the fund. 4. The record supports an award to Complainants in the amount of $3,266, all of which shall be appropriately chargeable against Respondent and/or persons on the license as set forth in A.R.S. § 32-1139(B). RECOMMENDED ORDER In view of the foregoing, it is recommended on the effective date of this Order the Registrar of Contractors shall commence and finalize payment procedures from the Contractors’ Recovery Fund to Complainants in the amount of $3,266. Done this day, October 30, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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