ALJDEC decisions subject to certification as final

2015A-2963-ROC · Registrar of Contractors · 2016-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2016, with the record held open until January 22, 2016 APPEARANCES: Complainant Paul Michael Nielson was represented by Riley Snow. Ana Contreras appeared on behalf of Respondent Earth Stone Water LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License No. 265235 and 279568 to Earth Stone Water LLC (Respondent). The Registrar received a Complaint against Respondent from Paul Michael Nielson (Complainant) alleging Respondent abandoned a landscaping project at his home after accepting a deposit of $11,229.00 on March 27, 2015. After the Registrar assigned the Complaint to its investigator, Matt Gunstra, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Investigator Gunstra determined that the contract included elements that were beyond the scope of Respondent’s licenses and that some work on the project had been completed by others. Investigator Gunstra found that Respondent had not done any work on the project. Complainant requested a hearing. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(16). A hearing was held on January 7, 2016. Investigator Gunstra testified about the Registrar’s standards. Complainant submitted five exhibits and presented the testimony of Mr. Nielson. Respondent presented the testimony of Ms. Contreras. Hearing Evidence On or about March 27, 2015, Complainant contracted with Respondent to perform a landscaping project including the installation of a BBQ structure for a total contract price of $22,458.00. Complainant paid a deposit of $11,229.00. Following the contract being executed, Respondent secured the services of designer who drew up plans for Complainant’s project. Respondent paid designer for those plans. Those plans constituted the only work performed by Respondent on the project. The record was left open for Respondent to submit records indicating how much the designer was paid for the plans, but Respondent failed to do so. Complainant testified that after entering into the contract, Respondent continued to delay the starting time until Complainant was eventually notified that Respondent was entering bankruptcy and would not be able to complete the project or pay the subcontractors. Complainant stated that he and his wife lined up the subcontractors and vendors and provided the supervision on the project. Complainant acknowledged receiving the plans for the project and used those to complete the project without Respondent’s services. Ms. Contreras testified that the designer was most likely paid $300.00 to $500.00 for the plans, but that she did not have the records available. Ms. Contreras did not deny any of the testimony or evidence provided by Complainant. Investigator Gunstra testified that the installation of the gas line required for the BBQ structure was beyond the scope of Respondent’s landscaping and irrigation system permit. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 11, 2016. Such prior License record reflects that Respondent’s License 265235 has been revoked since August 5, 2015. Such prior License record also reflects that there were nine complaints that resulted in discipline against Respondent and that there are eight open complaints against Respondent’s license. The prior License record also reflects that Respondent’s License 279568 has been revoked since August 5, 2015. Such prior License record also reflects that there were three complaints that resulted in discipline against Respondent and that there is one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations 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). 3. The evidence established that Respondent did not complete the project after entering into a contract, accepting a deposit, and arranging only the minimal work of securing designs for the project. Therefore, Complainant established Respondent abandoned the project in violation of A.R.S. § 32-1154(A)(1).[1] 4. The evidence established that Respondent contracted to provide services beyond the scope of its licenses in violation of A.R.S. § 32- 1154(A)(16).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Earth Stone Water LLC’s License No. 265235 and License No. 279568. 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, February 11, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, 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)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

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