ALJDEC decisions subject to certification as final

09F-2548-ROC · Registrar of Contractors · 2009-11-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2009 at 8:00 a.m.

APPEARANCES: >The Complainant appeared in her own behalf. >The Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The instant hearing was scheduled on advance written notice duly sent to both parties. Although the start of the scheduled hearing was delayed for over thirty minutes to afford added time in which to make an appearance, the Respondent failed to appear either individually or through any proper, authorized legal representative.

2. Complainant’s uncontroverted evidence revealed that, pursuant to a written proposal by Respondent that was accepted by Complainant, thereby ripening into a contract, Respondent commenced landscaping work on Complainant’s property

consisting of installation of a sprinkler system, as well as the furnishing and placement of pavers, boulders and sod materials. The stated agreed cost price for the contemplated work was $1,800.00 of which Complainant has paid an advance deposit to Respondent in the sum of 1,300.00, leaving a remaining balance of $500.00 that was not due until completion of the project.

3. Respondent was shown to have excavated a trench for the irrigation piping overly close to the footings of the residence so as to have caused the destruction of the then-existing termite barrier previously applied by one of the subcontractors for the builder of Complainant’s new home. This breaching of the prior barrier was further shown to have taken place on three sides of the dwelling. Moreover, when attempting to relocate the trenches, the trenching was placed overly close to the footing beneath the perimeter block wall. All of the trenching excavations were either left exposed or backfilled by Respondent without being properly re- compacted.

4. Debris was not promptly removed from the jobsite by Respondent during and after its work which was left in a largely incomplete state. Irrigation piping was left on the ground surface and not installed below such surface or hooked up to any water source. The grading or sloping of the ground was not directed away from the residence as required to meet applicable drainage requirements. This incomplete condition was allowed to remain on the property for a much prolonged time period, prompting the filing of the instant administrative complaint by Complainant with the Registrar of Contractors.

5. Despite having received an advance payment of over 70% of the contract price, Respondent ceased further work on the jobsite at a point when the specified work was only between 15% and 30% completed. In point of fact, except for attending the Registrar’s jobsite inspection, Respondent wholly failed to return to the jobsite for the purpose of achieving completion of the contracted work. Such inaction on the part of Respondent is found and determined to be an abandonment of its obligations under the parties’ contractual arrangements.

6. Following a jobsite visit, the Registrar’s assigned Inspector issued a written Corrective Work Order to Respondent confirming the necessity to complete the project appropriately, as well as to rectify the breached termite barrier problem and to properly re-compact all of the backfilled trenches. Some visible damage to some stucco surfaces caused during Respondent’s partially completed work was also to be rectified.

7. Respondent failed to accomplish or to even commence any of the corrective work set forth in the Inspector’s directive, notwithstanding an expressed agreement at the jobsite inspection to take appropriate completion and correction actions.

8. The sole items of the seven component elements of the parties’ original contractual agreement that had been addressed by Respondent on Complainant’s property, related to the placement of pavers around a selected location that was ultimately to receive sod materials. The sod itself was never provided or installed. Several trees furnished by Complainant were planted by Respondent, as agreed, but one such tree had been inappropriately planted too high and had to be re-planted. As previously stated, no portion of the irrigation piping was set in place under the ground surface and the sprinkler or bubbler system was never made operational. It is found that Complainant has not even remotely received the benefits of her contractual bargain with Respondent.

9. The business name utilized by Respondent in its advertising, invoices or proposal forms and other documents or business cards did not match the name on its contracting license and bond, as required by Statute and Rule.[1] Respondent consistently conducted its activities using the name of “4 Brothers, Inc.” whereas the name on its license was and is “4 Brothers Landscaping and Maintenance, Inc.” The use of such different name was and is impermissible.

10. The proposal and contract prepared by and utilized by Respondent in its dealings with Complainant did not comply with statutory requirements with respect to minimum elements of a construction-related contract.[2] More specifically, not only was the business name of Respondent incorrectly set forth, but also no completion date estimate for the work was included, nor was the requisite information and details as to the rights of the property owner to file a complaint with Registrar set forth in an appropriate size of type.

11. The Respondent had left the Complainant’s property in an unsightly and rather dangerous condition by not completing the contracted work and by not properly re-compacting the backfilled trenches. Long after the jobsite inspection and the issuance of the Corrective Work Order by the Inspector in November, 2008, and after a prolonged time period without any form of contact by Respondent to arrange for the performance of the completion and correction work, Complainant understandably and prudently resorted to another licensed specialty contractor for the accomplishment of the needed remedial work in late February, 2009, a time span of over three months.

12. Credible evidence tended to indicate that Complainant had selected the lowest of three separate bidders and had fully paid a total sum of $3,880.00 to the successor contractor. It was admitted that a portion of such cost price did consist of several additional elements not encompassed within the scope of Respondent’s contractual undertakings, such as additional boulders, a quantity of plant materials and also more dirt for purposes of constructing berms and other contouring. The combined total of such additional or upgraded work was further demonstrated to have represented not more than $800.00 of the overall cost price, thereby resulting in an adjusted expense incurred by Complainant of somewhat more than $3,000.00 to rectify the problems caused by Respondent’s incomplete and incorrect prior work efforts.

13. In addition to the remedial measures arranged for by Complainant to have Respondent’s landscaping work completed and corrected on her property, Complainant has also secured several proposals from licensed pest control companies over ten months ago for the necessary re-treating of the disturbed ground locations around three sides of the dwelling that had resulting in breaching the termite barrier. The lowest of such bids was in the sum of almost $370.00. Such cost price may well be higher at the present time. The touch up materials to be needed for the repair of certain chipped or damaged stucco surfaces during Respondent’s work was shown to entail an expense of not more than about $35.00.

14. The evidence of a combined total of over $3,400.00 representing expenses incurred or to be incurred by Complainant as a result of Respondent’s prior substandard, unacceptable and incomplete work appeared to be not only far greater than the unpaid contract balance of $500.00, but also effectively eradicates any entitlement for Respondent to retain any portion of the $1,300.00 amount received from Complainant as an advance deposit under the parties’ contractual arrangements.

15. A determination is warranted based upon the credible testimonial and documentary evidence presented at the hearing, that Respondent had effectively abandoned, or at the minimum had constructively abandoned, its construction-related obligations under the applicable contract. Respondent’s overall course of unresponsive conduct on this project reflected a blatant disregard of the comforts and entitlements of the Complainant/homeowner. Such course of action, or inaction, on the part of Respondent is further found to constitute a wrongful act resulting in substantial detriment of Complainant within the meaning of another contracting law provision charged hereunder as having been violated by Respondent.

16. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

17. Notice is taken of the Registrar’s license records which reveal that Respondent’s Class C-21 license has been suspended by operation of law since August 9, 2009 for lack of a qualifying party. More importantly, Respondent’s said license has been revoked by several separate Orders of the Registrar in other unrelated administrative disciplinary proceedings that have become final or will shortly become final in the absence of any timely filed petitions for rehearing or of any further judicial review appeals.

18. The present posture of Respondent’s license does not warrant the formulation of any work or payment conditions for inclusion in the Registrar’s Order to be entered in this case. In any event, compliance by Respondent with any such conditions would not operate to restore Respondent’s terminated license. Instead, another license revocation penalty should be imposed, not only extending the time period in which Respondent or its personnel may apply for and possibly obtain a future contracting license, but also enabling Complainant to seek and obtain an award from the Residential Contractor’s Recovery Fund for her damages caused by Respondent.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S.§32-1154(A)(1), (2), (7), (15), (23) and (3); namely, Rule R4-9-108, A.A.C. and also (13); namely A.R.S.§32-1158(B).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license be revoked on the effective date of the Registrar’s Order entered in this matter. ….. …..

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 forty (40) days from the date of that certification.

Dated: November 4, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

----------------------- [1] See A.R.S.§32-1154(A)(15). [2] See A.R.S.§32-1158(B)

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