ALJDEC decisions subject to certification as final

06F-M2019-ROC · Registrar of Contractors · 2006-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2006. APPEARANCES: Allison Hoover appeared personally. Sun Valley Tree and Landscape, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Sun Valley Tree and Landscape, L.L.C. (“Respondent”) is the holder of License No. 199388, a Class C-21 contracting license issued by the Registrar of Contractors. 2. On November 18, 2005, Allison Hoover (“Complainant”) entered into a written agreement with Respondent for front yard landscaping and back yard landscaping at her residence in Tempe, Arizona. Respondent’s scope of work was outlined in its Invoice Nos. 667 and 668, which had been submitted to Complainant earlier. 3. The total contract price for Respondent’s services was $7,249.19. Respondent has been paid in full by Complainant. 4. When Respondent completed its scope of work, Complainant noticed that sod that had been installed was dead or dying. This issue has been resolved. 5. Complainant made at least three telephone calls to Respondent about deficiencies in its scope of work. 6. On January 2, 2006, Complainant discussed the landscaping problems with Theresa, an employee of Respondent. 7. On January 5, 2006, Complainant spoke to Theresa concerning grass growing throughout the rock installed by Respondent. 8. On January 9, 2006, Complainant spoke to Theresa, who informed her that another employee named Mondo would address the landscaping issues. However, Mondo did not appear at Complainant’s residence at the time scheduled by Respondent’s office. 9. On January 19, 2006, Respondent’s employee failed to appear at Complainant’s residence to perform remedial work as scheduled. 10. On January 28, 2006, Respondent’s employee, Mondo, did appear at Complainant’s residence. He sprayed the yard, corrected a tree issue and repaired a drip line. On that date, there was grass throughout the rocks and mounds installed by Respondent. 11. On February 10, 2006, Complainant and her husband telephoned Respondent and spoke to another employee, Jason. During that conversation Jason became belligerent toward Complainant and her husband, and he stated to them that their landscaping issues were owner maintenance issues. 12. On February 23, 2006, Complainants hired Carter Weed Control to spray pre-emergent and post-emergent on her front and back yards because of the large outbreak of Bermuda grass where rocks had been installed by Respondent. Complainant paid Carter Weed Control the sum of $75.00 for its services. 13. On or about April 14, 2006, Complainant filed a written complaint against Respondent with the Registrar of Contractors alleging the following violations:

1. Wrong rock was laid in the yard, was not what (Complainant) ordered. 2. Planted/planned grass is dying. 3. Several plants in the yard had inadequate drip lines and are dying as a result of poor watering. 4. Bermuda grass outbreak throughout the rock areas, including on mounds in front and back yard, placed by (Respondent). 5. Incorrect tree planted in back yard.

14. Complainant received a citation from the City of Tempe in May 2006 for the grass growing through the rocks on her property. Complainant remedied the conditions by the City’s May 15, 2006 deadline date. 15. By letter dated May 16, 2006, Complainant requested a formal hearing on her complaint for the following reasons:

1. The drip lines are not corrected. 2. I have photographic evidence, phone logs stating Sun Valley’s knowledge of grass growing in the gravel areas, as well as a billing invoice from an independent weed control company all well within the set 90 day period.

16. The commencement of the scheduled hearing was delayed approximately 15 minutes to allow for the late arrival of an authorized representative for Respondent. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 17. Complainant is found to have notified Respondent of the grass growing in the rocks within 90 days of Respondent’s installation of the rocks. Therefore, Respondent is responsible for correcting the grass infiltration by appropriate means. 18. Respondent is found to have installed pink rock on Complainant’s front and back yards instead of the dark brown rock that she had selected. Approximately one week prior to performing work on Complainant’s residence, Respondent had performed landscaping work at the residence of Complainant’s mother. Part of that landscaping project was the installation of dark brown rocks. Complainant selected that same color rock as her mother. However, Respondent delivered and installed pink rocks, which Complainant had previously told Respondent that she did not want to receive. 19. Respondent’s failure to correct the condition of large amounts of grass growing in rocks installed by it and the delivery and installation of non-specified rock are wrongful acts that have substantially injured Complainant. 20. Respondent failed to list its contracting license number on its written agreement with Complainant and its invoices submitted to her. 21. A review of the official records maintained by the Registrar of Contractors reveals that Respondent’s License No. 199388 has four open complaints and five complaints that have been closed as resolved/settled/withdrawn in the past two years.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32- 1124(B), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. Pursuant to A.R.S. § 32-1156.01, Respondent should be required to pay restitution to Complainant in the amount of $75.00, the amount incurred by Complainant to hire Carter Weed Control to perform services to the grass growing in the weeds which should have been corrected by Respondent.

RECOMMENDED ORDER

Respondent’s License No. 199388 shall be suspended on the effective date of the Order entered in Case No. M06-2019 until the Registrar of Contractors receives written proof that Respondent has properly performed the following remedial work:

1. Respondent shall remove the existing pink rock installed at Complainant’s residence and install the dark brown rock at Respondent’s sole cost. 2. Respondent shall correct the condition of grass growing in the areas where it had installed the rock. Such repairs shall be at Respondent’s sole cost. 3. Respondent shall pay restitution to Complainant in the amount of $75.00, pursuant to A.R.S. § 32-1156.01.

If Respondent properly accomplishes the above described remedial 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 in Case No. M06-2019 shall be closed. 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 40 days from the date of that certification.

Done this day, December 22, 2006

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 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