ALJDEC decisions subject to certification as final

07F-A0204-ROC · Registrar of Contractors · 2007-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2007 APPEARANCES: Marilyn Siegel and Henry Siegel, Complainants; Jeff Barter, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On October 18, 2006, a Complaint was filed with the Registrar of Contractors (ROC) in which Complainants alleged that Respondent had performed some landscape work at their residence and that irrigation lines to some plants were not working after the job was completed. The Complaint also alleged that some outdoor potted plants had been moved and were not returned to their original locations when the job was completed. On February 27, 2007, a Citation was filed by the ROC alleging that Respondent had violated A.R.S. §32-1154A (7). FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) On October 3, 2006, Complainants entered into a written contract with Respondent for landscaping work at their residence in Prescott, Arizona.

(2) The invoice (Exhibit C-2), which constituted the contract, provided that Respondent would remove and replace swale rock, add four tons of 4”-8” river rock, remove pink decorative rock and replace it with two tons of new rock, and trim the tops of three Juniper trees. The invoice also made reference to a one-year monthly maintenance agreement between the parties which was later cancelled. (3) A letter, written to the ROC by Complainants after the Complaint was filed, stated that Respondent agreed to “check the entire irrigation system for leaks and see that all the emitters were working…” Exhibit C- 10. However, the invoice did not make any specific reference to the irrigation system. (4) In a letter to Complainants (Exhibit C-9) and also through testimony at the hearing, Respondent acknowledged that it had informed Complainants that it would check the irrigation system when the job was completed. However, that offer was made only as a gesture of goodwill and a favor to Complainants. It was not a part of the agreement between Respondent and Complainants. (3) Sometime after the agreement was signed, Respondent completed the work specified in the invoice. Complainants characterized the replacement of the rock on the property as “a very good job.” However, Complainants testified that, while the work was being performed, several potted plants were moved to a walkway. When they were replaced in the yard, they were not placed in their original locations, and three of the drip lines which ran to the pots were “crimped” in the process. Complainants discovered the damage to the drip lines and corrected the problem before the plants suffered any damage. (4) Complainants also testified that they were dissatisfied with how the three Juniper trees had been trimmed and the fact that some of the decorative rock had not been placed in locations previously agreed upon. (5) Jeff Barter, Respondent’s owner, testified that he checked the drip line emitters when the job was completed and replaced a missing emitter. He did not discover any other irrigation problems. He also testified that the pots referred to in the Complaint did not need to be moved and that he had placed the amount of rock agreed upon in the areas designated by Complainants. As to the Juniper trees, he testified that Mrs. Siegel supervised the trimming of the trees and that she had been very specific about how she wanted it done in order to maximize the view of the mountains from inside the house. Conclusions of Law: The Citation alleges that Respondent committed a “wrongful or fraudulent act” resulting in another person being substantially injured, in violation of A.R.S. §32-1154A (7). Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. Arizona Administrative Code, Section R2-19-119. A “preponderance of the evidence” is proof sufficient to persuade the fact finder that a proposition is more likely true than not. Although there may have been some misunderstanding as to the scope of the intended agreement between Complainants and Respondent, the work performed by Respondent was consistent with the written terms of that agreement. There was no evidence of a wrongful or fraudulent act. Additionally, there was no evidence of substantial injury to Complainants. The evidence was insufficient to establish a violation of A.R.S. §32- 1154A (7). RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Citation issued against Respondent, together with the Complaint upon which it is based, be dismissed.[1] Done this day, June 21, 2007.

______________________________________ Michael K. Carroll 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 ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification.

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