ALJDEC decisions subject to certification as final

2011A-6117-ROC · Registrar of Contractors · 2012-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 2012

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by corporate President and Qualifying Party Craig Skipper.

WITNESSES: Ted Gerold, ROC Inspector Lorri Wiggins Craig Skipper

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging abandonment of a project without legal excuse. Respondent denies that it had a contract with Complainant. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record, along with Respondent’s Exhibit 1. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of License No: C-21.187376-R, a specialty residential contracting license issued by the Registrar. The license authorizes Respondent to perform landscaping and installation of irrigation systems for residential projects. 2. Complainant testified that she met with a person named Brent Ford who held himself out as Respondent. They entered into a contract dated May 28, 2011, for landscaping work that included installation of a drip system, spreading rock, and planting trees and plants. The written contract is on a printed form that shows Respondent’s name and license numbers.[1] Handwritten on the top right corner of the form is the name “Brent Ford” and a telephone number of “480-252-8687.” This appears under a printed telephone number of “480-518-5100,” which is Respondent’s official phone number and which Craig Skipper, Respondent’s principal, testified is his cell phone number. 3. Complainant testified that she met at a nursery with Brent Ford after calling a telephone number that she procured from a website. However, she does not remember either the number or the website. She testified that she looked on the internet shortly before the hearing and found Respondent’s name used with the telephone number “480-252-8687,” a number that appears to be Brent Ford’s telephone number. When Complainant met with Brent Ford in May 2011, she testified that he crossed out the printed telephone number on the form, “480-518-5100,” and wrote in his name and telephone number, telling her to only deal with him and no one else. She did so. 4. She further testified that she has been recently working with ROC Investigators “Oscar” and “Alex” to pursue Brent Ford. In fact, she thought the hearing for this matter was going to be against Brent Ford and was puzzled that Craig Skipper appeared. She testified that she had never seen or spoken to Mr. Skipper before the hearing. 5. Mr. Skipper denied having any knowledge or participation in Complainant’s job. He testified that he too has been working with ROC Investigators to pursue Brent Ford. He testified that Brent Ford worked sales for Respondent in 2004 and that the form he used with Complainant is from 2004. He put into evidence as Exhibit 1 the more recent forms he has used for estimates and contracts since 2005. They are differently formatted from the form used with Complainant. 6. Mr. Skipper testified that he does not do much landscaping work anymore and he let his license lapse in August 2011. Just before that, in June 2011, he got word that Brent Ford was representing himself as Respondent. He contacted him and told him he had been fired and was not to use Respondent’s name. 7. After hearing Mr. Skipper testify, Complainant stated that she did not honestly believe that Respondent had anything to do with her job. She believes that Brent Ford was acting on his own. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(1) (abandonment of a project without legal excuse), A.R.S. § 32- 1154(A)(2) (failure to follow plans, specifications, or building codes), A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship), A.R.S. § 32-1154(A)(18) (contracting while a license is suspended or inactive), and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). Each allegation is based on the premise that Respondent had a contractual relationship with Complainant or performed work at Complainant’s home. 3. The evidence does not show that Respondent had a contractual relationship with Complainant or worked at Complainant’s home. Even Complainant does not believe it. 4. This matter should be dismissed. / / / / / / / / / RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-6117 against Respondent Tried and True Landscape, Inc. be dismissed.

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, June 14, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent held two licenses at the time, a residential license and a commercial license. Both license numbers appeared on the form. Only the residential license is the subject of this proceeding. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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