ALJDEC decisions subject to certification as final

2010A-308474794-ROC · Registrar of Contractors · 2011-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2011 APPEARANCES: Deborah Melnick appeared personally. Landscape Arizona, L.L.C. did not appear. 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. Landscape Arizona, L.L.C. (“Respondent”) is the holder of License No. 232838, a Class K-21 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Larry and Deborah Melnick (“Complainants”) hired Respondent for a construction project at their residence in Tumacacori, Arizona. 3. On July 28, 2010, Complainants filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on the project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. In response to the Complaint, the Registrar’s assigned inspector, Mike Nieves, performed a jobsite inspection to view the complaint items. 5. As a result of his jobsite inspection, Inspector Nieves issued a Corrective Work Order, directing Respondent to timely perform remedial work as follows: Contractor to correct the following by appropriate means: A. No contract provided: Provide contract. 1. Masonry wall – SW wall (outside master): a. Exposed foundation: Needs to be properly covered. b. No cap: Block caps at columns need to be installed. c. No sleeving: Sleeving needs to be installed. d. Stucco cracking and chipping, work incomplete at gates: Several cracks do not meet the standards, chipping needs to be repaired and finish rough needs to be properly completed. 2. Masonry wall – SW wall (dog run): a. No sleeving: Sleeving needs to be installed. b. Finish rough: Finish rough needs to be properly completed. 5. Masonry wall – (Around pool) Stucco cracking and chipping: Several cracks do not meet the standard, chipping needs to be repaired. 6. Masonry wall – (around pool equipment): a. Footing above grade: Grading needs to be properly corrected. b. Stucco cracking and chipping: Several cracks do not meet the standards, chipping needs to be repaired. 7. Masonry wall – (Around veg [sic] garden) Stucco cracking and chipping: Several cracks do not meet the standards, chipping needs to be repaired.

6. The Corrective Work Order further provided that no action was required by Respondent for the following complaint items: 3. Masonry wall – Front: Reimburse un-built walls and paid by owner along with overpayment billed (work repaired by other contractor): I lack jurisdiction. 4. Masonry wall – (Greenhouse): Footing above grade, wall not plumb for greenhouse structure support, no sleeving: I could not determine the extent of the contractors [sic] responsibility, another contractor had performed some work prior to the jobsite. 8. Greenhouse kit – Modification to prefab kit, bad workmanship, structural damages, electrical incomplete: I could not determine the extent of the contractors [sic] responsibility, another contractor had performed some work prior to the jobsite. 9. Grading-masonry structures built without grading: I could not determine if the vegetable garden planters are at the correct elevation. 10. Reimburse for all incomplete work paid by owner: I lack jurisdiction.

7. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. §§ 32-1124(B) and 32-1158, (18), and (23). 8. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. The Registrar issued a Notice of Hearing in Case No. 2010-[number redacted] advising the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 10. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 11. At the hearing, Inspector Nieves testified consistently with his findings in the Corrective Work Order. 12. Inspector Nieves also testified that Respondent failed to comply with the Corrective Work Order. 13. The parties’ original contract price was $54,195.25. Complainants actually paid Respondent the total sum of $74,870.72. 14. At the hearing, Complainant Deborah Melnick testified that Complainants overpaid Respondent the sum of $15,262.00. However, Complainants failed to present any credible supporting documentation to establish that claim. 15. Ms. Melnick testified that Complainants spent an additional $9,569.00 for remedial repairs to Respondent’s scope of work. Complainants failed to present any credible supporting documentation to establish that claim. 16. Ms. Melnick testified that Complainants paid $21,646.00 for the greenhouse kit. Ms. Melnick further testified that Complainants spent an additional $5,150.00 to salvage the greenhouse kit damaged by Respondent. Complainants failed to present any supporting documentation to establish that claim.[1] 17. There is credible evidence that Complainants paid Respondent the sum of $1,215.00 for electrical work never performed by Respondent.[2] 18. Respondent failed to properly list its contracting license number on its answer to the Citation and Complaint. 19. Respondent is determined to have failed to comply with statutory requirements for a written agreement. The Corrective Work Order required Respondent to produce the parties’ contract and Respondent failed to do so. 20. A review of the Registrar’s official electronic records reveals that Respondent’s License No. 232838 was suspended by operation of law on August 1, 2010, for non-renewal of the license. 21. The Registrar’s records further reveal that Respondent’s License No. 232838 was inactive from September 2, 2009, to December 23, 2009. The parties contracted for the project on November 21, 2009. Respondent was prohibited from performing any contracting during the period its license was inactive. However, Respondent’s license was active from December 24, 2009, through May 22, 2010, the date Respondent last performed work on the project. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license by operation of law for non-renewal does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and/or regulatory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a 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 charged in the Citation and Complaint issued by the Registrar. The evidence of record supports the conclusion that Respondent abandoned the subject project without legal justification. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent’s workmanship failed to meet workmanship standards. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124, as charged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list his contracting license number. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. Respondent failed comply with the required statutory minimum elements of a contract when it contracted with Complainants. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (18), as charged in the Citation and Complaint issued by the Registrar. Respondent contracted while its license was inactive. 8. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s Corrective Work Order issued in this matter. 9. Pursuant to A.R.S. § 32-1156.01, the evidence of record supports a recommendation that Respondent pay Complainants restitution in the amount of $1,215.00 paid by Complainants to Respondent for electrical work that Respondent never performed. RECOMMENDED ORDER Respondent’s License No. 232838 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. If Respondent pays restitution to Complainants in the amount of $1,215.00 for the electrical work paid for, but not performed by Respondent, on or before the effective date of the Order entered in Case No. 2010-[number redacted], then the above-provided license revocation shall not take place, but instead Respondent’s contracting license shall be suspended for a period of 14 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2010-[number redacted]. 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, April 11, 2011.

/s/ Brian B. Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Notwithstanding Findings of Facts 14, 15, and 16, Complainants are not precluded from establishing those financial claims if they apply for an administrative or judicial payout for damages from the Residential Contractors’ Recovery Fund. [2] Electrical work is outside the scope of Respondent’s Class K-21 contracting license. A Class K-21 licensee cannot subcontract out electrical work to a properly licensed electrical contractor.

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