ALJDEC decisions subject to certification as final

2013A-332-ROC · Registrar of Contractors · 2013-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 2013, with the record held open to October 15, 2013. APPEARANCES: Complainant Grace Crockett appeared on her own behalf. Respondent Chestnut Exteriors Landscape Design and Construction Co LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) first issued License No. C-21.281764-R to Respondent Chestnut Exteriors Landscape Design and Construction Co LLC (“Respondent”) on October 22, 2012. The Registrar received a Complaint against Respondent from Grace Crockett (“Complainant”) alleging that Respondent failed to complete a landscaping project for which it had contracted and had been paid a $15,000.00 deposit. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1); A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1124(B); and A.R.S. § 32-1154(20). Respondent filed a timely written answer to the Citation and Complaint denying any violation. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing at 8:00 a.m. on October 8, 2013, at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on October 8, 2013. Complainant testified and submitted one exhibit. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence On or about September 12, 2012, Complainant entered into a contract with Respondent for a landscaping project of Complainant’s backyard with a total contract price of $30,346.45. The contract did not include Respondent’s license number. At that time she accepted the contract, Complainant paid Respondent $15,000.00 as a deposit. The landscaping project was being done in conjunction with the installation of a new swimming pool and spa and required coordination as to the timing of different phases or construction. At various points of the project, Complainant attempted to contact Respondent to have some work completed. Respondent failed to respond to any of Complainant’s contacts. Complainant then hired others to complete the work so construction of the swimming pool and spa could continue on schedule. According to Complainant, Respondent did “absolutely no work” on the project. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 4, 2013. Such prior License record reflects that Respondent’s License No. C-21.281764-R was first issued on October 22, 2012, and was current. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 4. Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32- 1154(A)(1).[1] 5. The undisputed evidence at hearing established that Respondent’s contract failed to include Respondent’s license number issued by the Registrar. Therefore, Complainant established that Respondent failed to comply with the statute in violation of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1124(B).[2] 6. The undisputed evidence at hearing established that Respondent’s license had not yet been issued by the Registrar at the time it entered into the contract with Complainant. A.R.S. § 32-1122(E) provides as a qualification for a license that a person shall not “act as a contractor between the filing of the application and actual issuance of the license.” Further, A.R.S. § 32-1122(D) provides as a qualification for a license that a person “shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license.” Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(20).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Chestnut Exteriors Landscape Design and Construction Co LLC’s License No. C-21.281764-R for a period of 30 days. It is further recommended that in addition to the suspension, Respondent’s License shall be placed on disciplinary probation for a period of 180 days commencing on the expiration of the 30-day suspension. 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 4, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [2] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1124(B) requires that “[t]he license number appearing on any licenses held by the licensee shall be preceded by the acronym ‘ROC’ and . . . shall be placed on all written bids submitted by the licensee.” [3] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[s]ubsequent discovery of facts that if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.”

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