ALJDEC decisions subject to certification as final

07F-M2004-ROC · Registrar of Contractors · 2008-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 24, 2007. APPEARANCES: Michael de Best appeared personally. Euro Scapes, L.L.C. was represented by its member and qualifying party, Krzysztof Joseph Okolita. 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. Euro Scapes, L.L.C. (“Respondent”) is the holder of License No. 193961, a Class K-26 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. In 2006, Michael de Best and Joy Don Carlos (“Complainants”) entered into three separate Landscape Improvement Agreements with Respondent for specified hardscape, landscape and irrigation work to be performed at their residence in Gilbert, Arizona. 3. From on or about January 4, 2006 to on or about September 27, 2006, Complainant de Best paid the total sum of $154,000.00 to Respondent and its member and qualifying party, Krzysztof Okolita, for the original scope of work and change order items. 4. Pursuant to the parties’ agreements, any changes to the original scopes of work required a written change order. No written change orders were introduced into evidence at the hearing. 5. On or about May 4, 2006, Respondent commenced work on the project. 6. During the course of the project, Respondent had financial difficulties. Mr. Okolita refinanced his personal assets to provide funding to Respondent. 7. Mr. Okolita testified the money received from Complainants was spent on materials for the project. 8. Respondent installed trees in Complainants’ backyard. The trees had a 90-day warranty from the nursery. Some of the trees died after the warranty period. Respondent is not responsible for the dead trees after the warranty period. 9. It is unclear if Complainants had issues with their homeowners’ association due to Respondent’s workmanship or due to them not completing landscaping in the required timeframe which had expired prior to contracting with Respondent. 10. Respondent failed to complete the swim-up bar structure and separate cabana. 11. Respondent failed to complete the landscaping of Complainants’ front and back yards, including the installation of specified pavers. 12. Respondent failed to complete the project for the contracted price. Respondent ran out of money. 13. Respondent shut down its business. Respondent abandoned its contractual obligations owed to Complainants. 14. Respondent’s abandonment of Complainants’ project without legal justification, its failure to complete the project for the contract price and agreed upon change order costs paid for by Complainants, and its failure to perform its contractual scope of work to minimum workmanship standards are wrongful acts that substantially injured Complainants. After Complainants paid Respondent a significant amount of money for the incomplete project, they have been forced to incur additional expenses to complete Respondent’s scope of work and to remedy Respondent’s deficient workmanship. 15. A review of the Registrar’s official records reveals that Respondent’s contracting license was suspended by operation of law on May 12, 2007 for lack of bond. As a result of that suspension, Respondent can not perform any work on Complainants’ project while its license remains suspended. 16. The Registrar’s records further reflect that there are two resolved/settled/withdrawn complaints against Respondent’s contracting license.

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. Pursuant to the Registrar’s Workmanship Standards for Licensed Contractors, a contractor is only responsible for landscaping during the product’s warranty period. Respondent is not responsible for Complainants’ dead landscaping after the 90-day warranty period expired. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as cited in the Citation and Complaint issued by the Registrar. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. 7. 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 K-26 contracting license shall be revoked on the effective date of the Order entered in Case No. M07-2004. 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, January 7, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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