ALJDEC decisions subject to certification as final

2015A-3550-ROC · Registrar of Contractors · 2016-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 23, 2016 APPEARANCES: Jacqueline Collins on her own behalf; Mike Macias for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 12, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 23, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Treemendous Landscaping, LLC holds license number 224179 issued by ROC. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation, ROC alleges that Treemendous Landscaping may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Treemendous Landscaping’s license.[2] 5. Complainant Jacqueline Collins entered an agreement with Treemendous Landscaping in which Treemendous Landscaping was to provide services at a home owned by Christopher Torregrossa. These services included including leveling the yard and the removal and disposal of various existing features such as a fire pit, pavers, a rock pond, a “concrete river,” and small rock walls. 6. On August 18, 2015, Ms. Collins filed a complaint with ROC alleging workmanship and other deficiencies on Treemendous Landscaping’s part. 7. In response to Ms. Collins’s complaint, ROC Investigator Timothy Pennington conducted a job-site inspection on September 16, 2015, and he issued to Treemendous Landscaping a Directive dated September 16, 2015.[3] 8. Mr. Pennington determined that the yard had been leveled, but debris from the demolition work had been left on the property rather than hauled away.[4] 9. Mr. Pennington’s opinion is that Treemendous Landscaping’s failure to properly remove the debris constituted a violation of the “workmanship” standard. 10. At the hearing, the preponderance of the evidence confirmed that the demolition debris had not been removed from the property, which is a violation of the workmanship standard. 11. Through the Directive, ROC ordered Treemendous Landscaping to remedy by appropriate means it failure to remove the demolition debris. 12. On October 26, 2016, Mr. Pennington conducted a compliance inspection at which time he determined that the demolition debris had not been completely cleaned up. Consequently, ROC issued the Citation. 13. On January 26, 2016, ROC received from Treemendous Landscaping an answer to the Citation and Complaint, in which it acknowledged that it had not complied with the Directive in a timely manner. Treemendous Landscaping wrote that its failure to complete the work was due to family issues and because it did not have the funds required to complete the job. 14. In its answer, Treemendous Landscaping also wrote that as of January 21, 2016, the required work had been completed. 15. On March 17, 2016, Mr. Pennington conducted a prehearing inspection. Mr. Pennington provided credible testimony that Treemendous Landscaping completed some of the corrective work, but there was still some debris left on the site and that the corrective work had not been completed. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32- 1154(A)(22). 11. The preponderance of the evidence shows that Treemendous Landscaping violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner in that it did not remove the demolition debris from the yard. 12. The preponderance of the evidence shows that Treemendous Landscaping violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive. 13. Considering the nature of the workmanship violation, Treemendous Landscaping’s license should be suspended unless prior to the effective date of the final Order in this matter, it complies with the Directive. 14. Considering that Treemendous Landscaping in its answer acknowledged that it did not comply with the Directive and its stated reason for that failure, the imposition of a $500.00 civil penalty is appropriate. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter Treemendous Landscaping LLC’s license number 224179 is suspended until the Registrar of Contractors receives proof that Treemendous Landscaping LLC has complied with the Directive. If before the effective date of the Final Order, the Registrar of Contractors receives proof that Treemendous Landscaping LLC has complied with the Directive, then no suspension will take place; IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Treemendous Landscaping LLC must pay to the Registrar of Contractors in certified funds a civil penalty of $500.00. 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 is forty days after the date of that certification. Done this day, March 31, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on January 15, 2016 or that the Complaint was filed on August 18, 2015. [2] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] The Directive shows that a permit was required, but at the hearing Mr. Pennington acknowledged that no permit was required for the work at issue. [4] ROC’s Directive could be read to show that the property was not level, but Mr. Pennington, in response to a question about the scope of his findings, indicated that the sole issue was with regard to the debris.

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