ALJDEC decisions subject to certification as final

07F-2301-ROC · Registrar of Contractors · 2007-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 10, 2007. APPEARANCES: Svetlana and Harley Jergensen appeared personally. Best Bet Landscaping, LLC was represented by its member and qualifying party, Gordie Mell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Best Bet Landscaping, LLC (“Respondent”) is the holder of License No. 136892, a Class C-21 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about December 13, 2006, Respondent entered into a contract with Harley and Svetlana Jergensen (“Complainants”) for landscaping services at their residence in Scottsdale, Arizona. 3. Complainants paid Respondent a total contract price of $43,500.00. 4. Respondent was slow in getting its scope of work performed. 5. Pursuant to the parties’ written contract, Respondent was required to deliver 46 tons of granite to Complainants’ residence at a cost of $65.00 per ton. The original tonnage in the amount of 44 had been lined out and the handwritten number “46” inserted in the contract. While the words “approximate” and “or two loads” appear in the contract, it is clear that Respondent intended to deliver and Complainants expected to receive 46 tons of granite at $65.00 per ton. 6. The specified granite was intended to provide ground coverage at the front of Complainants’ residence. 7. Respondent obtained the selected granite from an out of town source. As a result of that, Respondent had higher trucking expenses and less profit. 8. Respondent delivered two truck loads of granite to Complainants’ residence. However, Respondent only delivered 40 tons of granite, which was less than the original specification in the contract and the amended increased tonnage. As a result of the delivery of only 40 tons of granite, there was not enough granite to give sufficient coverage to the front yard ground. 9. Because of the added expense of obtaining the out of town granite, Respondent unilaterally credited Complainants the sum of $390.00 for the remaining 6 tons not delivered. 10. Mr. Jergensen and Respondent later agreed that Respondent would deliver the remaining balance of 6 tons of granite at a cost of $65.00 per ton, and any additional tonnage would be at a cost of $85.00 per ton. However, the 6 tons of granite have not been delivered. 11. Within weeks of Respondent’s placement of the 40 tons of granite delivered on Complainants’ front yard, they discovered extensive weeds growing throughout the granite areas. They contacted Respondent to report the weeds, but Respondent refused to remove the weeds. 12. The Registrar’s Workmanship Standards for Licensed Contractors, February 2007 edition, provides that grass and weeds growing in rocks should be corrected by the contractor “by appropriate means within 90 days.” Having been given timely notice by Complainants that weeds were growing in the granite placed on their front yard by Respondent, Respondent was responsible for removing the weeds at its sole cost and expense. 13. Complainants subsequently filed a written Complaint with the Registrar alleging statutory and regulatory violations. 14. The Registrar issued a Citation and Complaint alleging that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (7) and (9). 15. Respondent is found to have abandoned Complainants’ project without legal justification. Respondent was contractually obligated to deliver the specified tonnage of granite but did not do so. Further, Respondent failed to address the weeds growing in the granite. 16. Respondent’s failure to deliver the specified tonnage of granite for the price stated in the parties’ contract, its failure to correct the weeds growing in the granite, and its abandonment of the Complainant’s project are wrongful acts that substantially injured Complainants. 17. Any compensatory damages sought by Complainants should be addressed in a civil court of competent jurisdiction rather in this administrative proceeding.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as cited in the Citation and Complaint issued by the Registrar. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (9), as cited in the Citation and Complaint issued by the Registrar.

RECOMMENDED ORDER

Respondent’s Class C-21 contracting license shall be suspended on the effective date of the Order entered in Case No. 07-2301 until the Registrar receives written proof, and it approves such proof, that Respondent has delivered 6 tons of the granite originally selected by Complainants at the original contract price of $65.00 per ton, and that it has remediated the weeds growing in the existing granite it used to cover Complainants’ front yard. If Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in Case No. 07- 2301, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s Class C-21 contracting license shall be placed on probation for a period of days commencing on the effective date of the Order entered in Case No. 07-2301 or the date that the Registrar approves the filed notice of Respondent’s proper compliance with the terms of this Order, whichever is later. 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 18, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

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

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