ALJDEC decisions subject to certification as final

2016A-1842-ROC · Registrar of Contractors · 2016-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karl Copenhaver,

COMPLAINANT,

v.

Moon Valley Nursery Inc.,

License No. CR21.140536-D,

RESPONDENT.

No. 2016A-1842-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 27, 2016, at 10:00 a.m.

APPEARANCES: Karl Copenhaver (“Complainant”) appeared on his own behalf; Moon Valley Nursery Inc. (“Respondent”) was represented by John L. Dillingham, Esq., Dillingham Law PLLC.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

On or about November 17, 1998, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.140536-D for dual landscaping and irrigation systems to Respondent.

On or about May 31, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had failed to timely complete and had performed poor work on its contract to install low voltage lights at Complainant’s house at 13734 N. 150th Lane, Surprise, Arizona 85379. According to the complaint, Complainant had paid Respondent $11,279.86 on an original contract amount of $7,677.59.

The Registrar assigned the complaint to its Investigator, Russell Reed (“Investigator Reed”) for investigation. Investigator Reed performed a jobsite inspection on Complainant’s complaint and on June 17, 2016, issued a Directive that required Respondent to correct by appropriate means certain workmanship deficiencies on or before 5:00 p.m. on July 6, 2016, in relevant part as follows:

Mount transformer.

Landscape lighting system did not work.

All Light fixtures should be identical.

Wires for lighting should be buried.

.

Investigator Reed sent the complaint to the Registrar’s Legal Department. On July 8, 2016, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Respondent’s attorney filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that Complainant had refused to provide access to allow Respondent to correct its work or to comply with the July 6, 2016 Directive..

The Registrar referred Complainant’s complaint to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on September 27, 2016. Complainant submitted four exhibits and testified on his own behalf. Respondent submitted five exhibits and presented the testimony of two witnesses: (1) Rusty Khan (“Mr. Khan”), the qualifying party/member of Pelican Landscape Development and Pool Design LLC, License No. CR21.299222-D, Respondent’s subcontractor on Complainant’s project; and (2) Eugene (“Gene”) Ruiz (“Mr. Ruiz”), Respondent’s Chief Financial Officer/Executive Vice President. Investigator Reed also testified.

Hearing Evidence

On or about January 25, 2016, Respondent contracted to install low voltage landscape lighting, including pathway lights, spotlights, and floodlights, for a contract price of $7,677.59 at Complainant’s property. The contract did not include an anticipated date of completion.

Complainant testified that from the beginning, he was dissatisfied with the quality of Respondent’s work. Complainant testified that there were dead spots in the yard where the lights did not work and spots where the lights were dim.

Complainant testified that Respondent’s Director of Landscape Sales, Joe Duffle (“Mr. Duffle”) begged Complainant to allow Respondent to make it right.

On or about April 7, 2016, Respondent contracted to install additional low voltage lights at Complainant’s property for an additional payment of $3,258.89.

At some point in the past, Complainant had paid his masonry contractor to install step lights that Complainant had purchased at Home Depot. Mr. Khan testified that Respondent contracted to replace the step lights but not to replace the cables in the April 7, 2016 contract.

Mr. Khan testified that all the lights worked after they were installed. Mr. Khan explained that if a connection is loose, all the lights behind the loose connection will black out.

Mr. Khan testified that he buried all the electrical cables beneath the decomposed granite. Mr. Khan testified that he returned numerous times to the jobsite in response to Complainant’s complaints that the wires were not securely attached. When he returned to the job, he saw wires close to the ground. Mr. Khan testified that he did not leave the wires that way.

Mr. Khan testified that dim lights result from insufficient power, not loose connections. Respondent installed a second transformer on the job at no cost to Complainant to make the lights brighter.

Investigator Reed testified that he performed a jobsite inspection on June 17, 2016. Mr. Duffel attended the inspection on behalf of Respondent. Investigator Reed testified that he saw wires laying on top of the decomposed gravel that should have been buried. In addition, Mr. Duffel could not turn on some of the lights and a transformer was not securely attached to a wall, but was laying on the ground. Investigator Reed acknowledged that he did not know whether the wires had ever been buried.

Investigator Reed testified that Mr. Duffel stated that he had observed Complainant’s dog chewing wires and that the statement made Complainant very angry. Complainant cursed Mr. Duffel and demanded that Mr. Duffel get off Complainant’s property.

Mr. Duffel had food poisoning and did not attend or testify at the hearing.

Complainant denied that his dog dug up or chewed cables or electrical wires. Complainant testified that he and his wife had to put the dog down during the time that Respondent was working on the low voltage lights.

Investigator Reed testified that after he issued the June 17, 2016 Directive, he spoke to Complainant and informed him that it was important that he allow Respondent access to comply with the Directive. Investigator Reed testified that Complainant stated that he had hired a new electrical contractor to repair the low voltage lights and that Respondent was not allowed back on his property.

Investigator Reed testified that a contractor cannot comply with a Directive if the homeowner does not allow access. If the contractor attempts to comply, the homeowner may contact law enforcement about the contractor trespassing on the homeowner’s property.

Complainant testified that Respondent came onto his property on June 22, 2016, and worked for eight hours, but did not complete repairs. Complainant submitted a text to Mr. Duffel dated June 22, 2016, stating that “I made it very clear to you in text and in person that you were no longer authorized to come on my property and you would not be allowed to perform any additional work on my home.”

Complainant testified that the new electrical contractor that he hired was able to repair the low voltage lights in only three days and that the lights now work perfectly.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

The legislature has not empowered either OAH or the Registrar to adjudicate or award money damages. The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work. However, because construction is not a perfect art, generally, a contractor must be afforded an opportunity to correct its work before its license may be suspended as a result of the poor work.

Complainant did not establish that the problems in the low voltage lighting system could not be remedied. Because Complainant did not allow Respondent to attempt to repair the low voltage lighting, he did not establish that Respondent was responsible for any deficiencies in the low voltage lighting such as to furnish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. This recommendation is without prejudice to Complainant’s right to establish a civil claim against Respondent for monetary damages in a court having competent jurisdiction.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Karl Copenhaver’s Complaint in Case No. 2016-1842 against Respondent Moon Valley Nursery Inc.’s License No. CR21.140536-D shall be closed for denial of access.

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, October 6, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors