FINACT2016A-3235-ROC.pdf

2016A-3235-ROC · Registrar of Contractors · 2017-03-13

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Janice L. Celotti, Case No. 2016-3235 COMPLAINANT,

v.

Estrella Valley Landscapes, FINAL ADMINISTRATIVE LLC, DECISION License No. 275341, RESPONDENT. Docket No. 2016A-3235-ROC AND ORDER

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REJECTION & JUSTIFICATION

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and rejects it.

Background

Two sisters — Lorraine Celotti and Janice Celotti — own homes next door to each other. ALJ Dec.

2:1–3. Both sisters hired the same contractor — Estrella Valley Landscapes. Both sisters had problems

with Estrella Valley Landscapes. And both sisters came to the Registrar of Contractors, complaining about the work that Estrella Valley Landscapes performed at their properties. One of the Registrar’s investigators, Investigator Lawton, inspected Estrella Valley’s work at both properties. ALJ Dec. 2:8–10. On September 14, 2015, Investigator Lawton signed a Directive from the Registrar. ALJ Dec. 3:2–7. The Registrar’s Directive was addressed to Estrella Valley at its address of record. ALJ Dec. 3:2–7. The Directive directed Estrella Valley to remedy multiple workmanship issues

1 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 “[a]t both locations of 17890 and 17896 W. Desert Wind Drive.” ALJ Dec. 3:2–7; Directive from the Registrar of Sept. 14, 2015 (emphasis added). After sending the Directive to Estrella Valley, Investigator Lawton conducted a compliance inspection on October 21, 2015. ALJ Dec. 3:7–9. As the ALJ Decision notes: “A representative for Estrella Valley was present at that time.” ALJ Dec. 3:7–9. The Revocation In the administrative case in which Lorraine Celotti was the named complainant, an administrative law judge recommended that the Registrar revoke Estrella Valley’s contractor’s license. See ALJ Dec.

7:24–26 in Case No. 2015A-2098-ROC). The Registrar accepted that decision and revoked Estrella

Valley’s license on July 5, 2016. ALJ Dec. 1:27.

Lorraine Celotti’s Recovery Fund Claim

Following Estrella Valley’s revocation, Lorraine Celotti — as a “person injured” by a licensed

residential contractor — submitted her claim to the Recovery Fund. The Registrar, as trustee of the Fund,

awarded her a payment to remedy Estrella Valley’s poor workmanship. A.R.S. § 32-1132(A); ALJ Dec.

2:17–29.

Janice Celotti’s Administrative Case

At some point, Lorraine’s sister — Janice Celotti — realized that she would need to have her own

case administratively decided (i.e., have a final administrative decision with a caption including her as the named complainant) in order to receive her own Recovery Fund payment. ALJ Dec. 3:9–12. So she filed a separate complaint form, and her case went to the Office of Administrative Hearings. The Office of Administrative Hearings assigned Janice Celotti’s case to a different administrative law judge — not the one who had presided over Lorraine Celotti’s case. Procedural questions arose. The Registrar, attempting to address those questions, filed an amicus brief to clarify why Estrella Valley was again at a hearing, but now with a case filed in Janice Celotti’s name. /// /// Recommended Disposition: A One-Day Suspension on Non-Workmanship Grounds Ultimately in Janice Celotti’s case against Estrella Valley, the ALJ Decision concluded that no workmanship deficiencies could be cited under A.R.S. 32-1155(C)(1). And while the ALJ Decision found that Estrella Valley’s license “should be disciplined,” the Decision recommended only a one-day suspension (arising from violations for working out of scope and for errors in advertising). ALJ Dec. 8:10–24. A.R.S. § 32-1155(C) The ALJ Decision never addressed substantively whether Estrella Valley did in fact perform

deficient work or fail to comply with building codes at Janice Celotti’s property. The ALJ Decision dealt

with those issues procedurally, concluding (1) that Estrella Valley did not have the notice required by

A.R.S. § 32-1155(C) and (2) that because of that alleged lack of notice, “it has not been shown that

Estrella Valley violated Ariz. Rev. Stat. Section 32-1154(A)(2) or (A)(3).” ALJ Dec. 8:2–8.

The Registrar rejects those two conclusions.

Under A.R.S. § 32-1155(C)(1), the Registrar may not issue a citation for workmanship issues if

“[t]he contractor is not provided an opportunity to inspect the work within fifteen days after receiving a

written notice from the registrar.”

Estrella had notice and an opportunity to inspect. As stated above, the Registrar’s September 14

Directive referenced Janice Celotti’s property, and a representative for Estrella Valley was at the Registrar’s inspection in October 2015. Estrella Valley never alleged at that time any earlier denial of “an opportunity to inspect the work” under A.R.S. § 32-1155(C). Nothing in the record shows any affirmative denial of Estrella Valley’s access to Janice Celotti’s property following the September 14 Directive. A.R.S. § 32-1155(C) poses no issue. The record shows that Estrella Valley had notice of the alleged deficiencies at Janice Celotti’s property and ample opportunity to inspect them. The statute does not bar the citation. ///

3 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 /// CONCLUSION The Registrar, therefore, rejects the ALJ Decision and remands the case back to the Office of Administrative Hearings for a further hearing. This hearing must address the issue of Estrella Valley’s workmanship at Janice Celotti’s property. If the administrative law judge finds that Estrella Valley violated statutes, rules, or standards by performing poor work at Janice Celotti’s property, then the ALJ Decision should state that determination. But if the administrative law judge finds no such violation arising from poor work, then the ALJ Decision

should state (1) that finding and (2) the proposition that flows from it: that Janice Celotti has no

administrative basis for proceeding to the Recovery Fund.

In sum: The parties should receive a hearing on the workmanship, and the Registrar should

receive a decision addressing the merits of the workmanship issues raised in the directive and citation.

Dated this 10th day of March 2017.

Registrar of Contractors

/s/ James N. Hanson ----------------------------------------------------------- James N. Hanson Assistant Director, Legal Department Copy mailed via USPS First Class mail this 10th day of March 2017 to:

Respondent Estrella Valley Landscapes, LLC P.O. Box 823 Litchfield Park, AZ 85340-0823 Complainant Janice L. Celotti 17890 W. Desert Wind Dr. Goodyear, AZ 85338-7794

And copy electronically mailed this same date to:

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge Case No. 2016-3235/ck

5 of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762