ALJDEC decisions subject to certification as final

2016A-297-ROC · Registrar of Contractors · 2017-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Karl Crane,

COMPLAINANT,

v.

Sunburst Landscaping, Inc.,

License No: 108581 and 065944

RESPONDENT

No. 2016A-297-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 29, 2016, and January 3, 2017

APPEARANCES: At the initial hearing, Complainant Steven Karl Crane appeared on his own behalf. At the further hearing, Complainant was represented by Raymond K. Ramella. Respondent Sunburst Landscaping, Inc. was represented by Tom Horne.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Sunburst Landscaping, Inc. (Respondent) is the holder of License Nos. 108581 and 065944 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 30, 2015, Steven Karl Crane (Complainant) signed a contract with Respondent for, among other things, the installation of 1,560 square feet of EasyTurf and the removal and reinstallation of existing pavers in the backyard.

On or about January 25, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Klein. On April 8, 2016, after a jobsite inspection, Investigator Klein issued a Directive from the Registrar (Registrar) to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 4-19-16.

You are hereby directed to remedy the following violations by the appropriate means:

Paver pattern gaps inconsistent where SE corner squaring was corrected , and still slightly out of square

1⁄2” dip in driveway pavers over short distance.

1 dead plant in rear yard

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On April 14, 2016, Investigator Klein issued an Amended Directive from the Registrar (Amended Directive) that added the item, “Respondent shall complete project per original contract agreement.” The deadline to provide proof of compliance with the Amended Directive remained 5:00 p.m. on April 19, 2016.

On April 18, 2016, upon receipt of the Amended Directive, Noelle Boothby, Respondent’s Vice President, emailed Complainant to arrange a time to perform the corrective work. Ms. Boothby offered April 22, 2016, April 26, 2016, and April 27, 2016, as available dates and requested 24 hours’ notice.

On April 26, 2016, Complainant called Ms. Boothby regarding the April 18, 2016 email. Ms. Boothby called Complainant back that day and left a voicemail requesting a call back. At 5:37 p.m. that day, Ms. Boothby emailed Complainant regarding his call; Ms. Boothby indicated that “[i]t is 5:30 and I am leaving the office but you can call me tomorrow.”

Complainant acknowledged he did not return Ms. Boothby’s call after April 26, 2016.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Administrative notice is taken of Respondent’s prior license record on January 20, 2017. Such prior license record reflects that Respondent’s License No. 108581 was first issued on August 1, 1995, and is current. Such prior License record also reflects that there was one open complaint and no prior complaints against Respondent’s license. Such prior license record also reflects that Respondent’s License No. 065944 was first issued on September 3, 1986, and is current. Such prior License record also reflects that there are no open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

A.R.S. § 32-1154(A)(22) includes, among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following:

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.

Emphasis added.

The evidence established that the Directive issued on April 8, 2016, had a deadline for compliance of April 19, 2016, or only 11 days. Further, the Amended Directive issued on April 14, 2016, had the same deadline for compliance of April 19, 2016, or only 5 days. In either case, Respondent was not given 15 days to comply with the written directives of the Registrar. It is also noted that the dates Ms. Boothby offered to Complainant in the April 18, 2016 email were all within 15 days of the Amended Directive and one was within 15 days of the Directive. Complainant did not respond to Ms. Boothby’s offer of any of those days to perform the corrective work indicated by the directives.

While Complainant argued he did not agree with the corrective work proposed by Respondent or the manner in which Respondent was proposing to comply with the written directives, Complainant did not have the right to dictate to Respondent how it would perform repairs to comply with the written directives.

Because Respondent established that Complainant did not allow it reasonable access to comply with the Directive or the Amended Directive, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint in this matter.

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, January 20, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors