ALJDEC decisions subject to certification as final

2010A-308476068-ROC · Registrar of Contractors · 2011-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2011 APPEARANCES: Lyle Book appeared personally. Ryan J. Davis, doing business as Scapes by B T S, appeared personally. 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. Ryan Davis, doing business as Scapes by B T S (“Respondent”), is the holder of License No. 255627, a Class C-21 contracting license issued by the Registrar of Contractors (“Registrar”). 2. In 2010, Lyle Book (“Complainant”) contracted with Respondent for landscape work by Respondent at Complainant’s residence in Chandler, Arizona. 3. Complainant filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent during the performance of work on the subject project. The Registrar designated Complainant’s Complaint as Case No. 2010-[number redacted]. 4. 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) (2), (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The parties’ dispute is now limited to the granite for Complainant’s front yard. All other Complaint items have been resolved. 7. The Registrar’ assigned inspector, Ted Gerold, performed a jobsite inspection that resulted in the issuance of a Corrective Work Order dated October 25, 2010. 8. Inspector Gerold performed a second jobsite inspection in November of 2010. During that inspection, Respondent agreed to remove the Madison Gold granite he had applied to Complainant’s front yard and replace it with Walker Gold granite. The Walker Gold granite matched the original granite in Complainant’s front yard and the granite in his adjoining neighbor’s yard. 9. As a result of the second jobsite inspection, Inspector Gerold issued a second Corrective Work Order dated November 23, 2010, that required, among other things, that Respondent replace the Madison Gold granite with Walker Gold granite in Complainant’s front yard. 10. The evidence of record established that Respondent failed to replace the Madison Gold granite with Walker Gold granite in Complainant’s front yard. All other items in the two Corrective Work Orders have been corrected. 11. A review of the Registrar’s official public electronic records reveals that Respondent’s License No. 255627 was revoked on March 10, 2011, for Respondent’s failure to pay a civil penalty to the Registrar. As a result of that revocation, Respondent may not perform any remedial work in this matter.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the revocation of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and/or regulatory violations in this matter. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has 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). 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to remove the Madison Gold granite and install Walker Gold granite in a workmanlike manner as Respondent agreed to do at the second jobsite inspection and as required by the Registrar’s November 23, 2010 Corrective Work Order. RECOMMENDED WORK ORDER Respondent’s License No. 255627 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before the effective date of the Order entered in Case No. 2010-[number redacted] shall result in the additional automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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, August 10, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractor -----------------------

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