ALJDEC decisions subject to certification as final

2016A-1327-ROC · Registrar of Contractors · 2016-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2016, at 10:00 a.m. APPEARANCES: David Kratz (“Complainant”) appeared on his own behalf; Monty Brothers Landscaping and Maintenance Co. Inc. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License Nos. CR21.283892-D, CR21.291055-D, and CR21.183642-D for dual landscaping and irrigation systems to Respondent. Respondent’s address of record is P.O. Box 51171, Phoenix, Arizona 85076-1171. According to the Registrar’s public website, Respondent cancelled those licenses on or about March 20, 2014, July 17, 2015, and March 16, 2013, respectively. 2. On or about December 21, 2015, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent had performed poor work on its May 9, 2015 contract to perform concrete and landscaping work at Complainant’s house at 15044 South 40th Street, Phoenix, Arizona 85044. 3. Initially, the Registrar assigned the complaint to be investigated as unlicensed contracting because Respondent had cancelled all of its licenses. When the Registrar determined that License No. CR21.291055-D was current and active on the date of the contract alleged in Complainant’s complaint, the Registrar assigned the complaint to its investigator, Jack Grimm (“Investigator Grimm”), for investigation. Investigator Grimm performed a jobsite inspection and on June 3, 2016, issued a Directive to Respondent requiring it to correct the concrete and drain on the project on or before 5:00 p.m. on June 21, 2016. 4. After the deadline in the June 3, 2016 Directive had passed, Investigator Grimm called Complainant and he stated that Respondent had not contacted Complainant or done anything to comply with the June 3, 2016 Directive. Investigator Grimm referred the complaint to the Registrar’s Legal Department. 5. On June 23, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 6. Respondent filed a timely written answer to the Citation, alleging that it planned to resolve Complainant’s complaint. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 7. On July 13, 2016, the Registrar issued a Notice of Hearing, setting an evidentiary hearing on September 2, 2016. The Registrar sent the Notice of Hearing to Respondent at its address of record. 8. An evidentiary hearing was held on September 2, 2016. Investigator Grimm testified to establish the facts set forth above and that Respondent’s work on the concrete and drain at Complainant’s project did not comply with the Registrar’s or industry standards. Complainant credibly testified that Respondent had not resolved the workmanship deficiencies. 9. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the hearing did not conclude for more than 30 minutes after the noticed start time, Respondent did not appear through an authorized officer, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 10. Administrative notice is taken of Respondent’s license history on August 31, 2016, on the Registrar’s public website pursuant to A.A.C. R4-9-117. No prior discipline has been taken against the licenses. All three licenses remained cancelled. CONCLUSIONS OF LAW The cancelled status of Respondent’s licenses does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[1] This matter lies within the Registrar’s jurisdiction.[2] The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the September 2, 2016 hearing.[3] Complainant bears the burden of proof to establish cause to discipline Respondent’s licenses by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Complainant established that Respondent’s workmanship on the concrete and drain at Complainant’s house did not comply with the Registrar’s or industry standards, furnishing cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3),[6] namely A.A.C. R4-9- 108.[7] Complainant also established that Respondent failed to comply with the Registrar’s June 3, 2016 Directive, furnishing additional cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32- 1154(A)(22).[8] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License Nos. CR21.283892-D, CR21.291055-D, and CR21.183642-D of Respondent Monty Brothers Landscaping and Maintenance Co. Inc. shall be suspended for a period of 30 calendar days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar shall revoke Respondent’s licenses, 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 Respondent tenders payment of any outstanding prior civil penalty. 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 five days from the date of that certification. Done this day, September 2, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(D). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [2] See A.R.S. § 32-1154(A). [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [7] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [8] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

-----------------------

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