ALJDEC decisions subject to certification as final

09F-3228-ROC · Registrar of Contractors · 2009-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2009 APPEARANCES: Mike Gilbertson and Kathleen Gilbertson, Esq. appeared personally. Premier Turf and Putting Greens, Inc. was represented by its attorney, Mark A. Tucker, Esq. 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. Premier Turf and Putting Greens, L.L.C. (“Respondent”) is the holder of License No. 186294, a Class K-05 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 4, 2008, Mike and Kathleen Gilbertson (“Complainants”) filed a written Complaint with the Registrar concerning Respondent’s sale and installation of defective artificial landscaping at Complainants’ residence. The Registrar designated the Complaint as Case No. 09-3228. 3. The Registrar issued a Citation and Complaint in Case No. 09-3228 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (17), (3), namely A.A.C.R4-9-108, and (13), specifically A.R.S. § 32- 1124(B). 4. The Registrar forwarded Case No. 09-3228 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. Respondent presented Complainants with a contract dated April 10, 2007 for the purchase and installation of artificial landscaping products. The contract price totaled $9,706.26, including tax. 6. Respondent’s contract failed to list its contracting license number. 7. Complainants did not execute the contract, but they accepted it by paying Respondent a down payment in the amount of $4,800.00. Complainants eventually paid Respondent the balance of the contract price. 8. Respondent’s contract contained the following language: “Guarantee: Warranty of material is 5 years and 1 year installation by Premier Turf.” 9. By letter dated June 25, 2008, which should read June 25, 2007, Respondent acknowledged payment in full from Complainants. Respondent also forwarded to Complainants a Surfside Concepts, Inc. Artificial Outdoor Palm Trees Limited Warranty. Surfside Concepts, Inc. was the product manufacturer of the artificial landscaping sold and installed by Respondent. 10. A few months after the artificial landscaping was installed, the following five plants became defective: one 7.2’ Pygmy Date Palm, one 8.5’ Pygmy Date Palm, one 3.3’ Big Crown, and two 4’ aloe Vera plants. The remaining plants that were installed were not defective. 11. Complainants contacted Surfside Concepts, Inc., who agreed that the five defective plants could not be replaced because the problem was the Arizona elements. The manufacturer candidly explained that it made no sense to replace the defective artificial plants, because it would be a continual process for the term of the warranty. 12. By letter dated November 7, 2007, Surfside Concepts, Inc. informed Complainants that it believed they were entitled to a complete refund for the five defective artificial plants. The manufacturer explained that for a full refund, the distributor, Arizona Artificial Palms, and Respondent would have to agree and fund their shares of the refund. 13. By letter dated November 7, 2007, Surfside Concepts, Inc. returned its proportionate share of the five defective artificial plants to the distributor, Arizona Artificial Palms. 14. By letter dated November 18, 2007, which should read November 18, 2008, Arizona Artificial Palms informed Respondent that both the distributor and manufacturer determined that the best way to settle the issue was to give Respondent a full refund for the five artificial plants. Arizona Artificial Palms sent Respondent a check for 100% refund for the cost paid by Respondent for the five defective artificial plants. 15. By letter dated December 2, 2008, Respondent informed Complainants that it had met with the distributor the night before to finalize Complainants’ claim. Respondent required Complainants to file a Full Release of All Claims, which included the five defective artificial plants and the following conditions in order to receive repayment in the amount of $3,381.05 for the five defective artificial plants: - Retract the complaint from the BBB, with a resolved resolution. - Any complaint to the ROC will be retracted with a resolved resolution. - No other complaints will be made now or in the future to BBB, ROC or any other affiliate. - Premier Turf will not be held liable for any further current and future claims in any way with regards to the warranty or warranty claims of any items pertaining to the service and products performed, including product remaining at the address listed on the contract.

16. Respondent’s letter dated December 2, 2008 failed to properly list its contracting license number. 17. Complainants objected to signing the release of liability for Respondent as to the non-defective products remaining at their residence. 18. Respondent sold five artificial plant products and installed them at Complainants’ residence, which were later determined by the products’ manufacturer and distributor to be defective. 19. Respondent’s failure to pay the refund to Complainants for the five defective artificial plants without the condition that they release Respondent from all liability for the remaining non-defective plants at their residence is a wrongful act that resulted in substantial injury to Complainants. 20. A review of the Registrar’s official electronic records reveals that Complainants’ Complaint is the only one listed against its 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. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B), as charged by the Registrar in the Citation and Complaint. The above Findings of Fact support this conclusion. 4. The evidence of record is devoid of any credible evidence that Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as charged in the Citation and Complaint issued by the Registrar. Complainants did not address this allegation at the hearing. Therefore, there is no factual basis to support the allegation. 5. Pursuant to A.R.S. § 32-1156.01, the evidence of record supports a conclusion that Complainants are entitled to restitution from Respondent in the amount of $3,381.05, without a release from Complainants for Respondent’s liability for the remaining artificial plants at their residence. RECOMMENDED ORDER Respondent’s License No. 186294 shall be suspended on the effective date of the Order entered in Case No. 09-3228 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has paid restitution to Complainants in the amount of $3,381.05 and that Respondent has become fully compliant with the requirements of A.R.S. § 32- 1124(B). If Respondent fully complies with the above-described two conditions on or before the effective date of the Order entered in Case No. 09-3228, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s contracting license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in Case No. 09-3228 or the date on which the Registrar approves 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, November 3, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 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