ALJDEC decisions subject to certification as final

2016A-4934-CHC-ROC · Registrar of Contractors · 2017-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Fera,

COMPLAINANT,

v.

Landscapes R Us Inc.,

License No: 228463

RESPONDENT »

No. 2016A-4934-CHC--ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 27, 2017

APPEARANCES: Richard Fera, Complainant, Jeffrey T. Brei, Esq., counsel for the Complainant; Josh McPherson, Respondent and Qualifying Party; John Smith, ROC Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On, February 23, 2017 the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for an evidentiary hearing on March 31, 2017. The matter was continued upon Motion of the Respondent to April 27, 2017 at 8:30 a.m. in the Office of Administrative Hearings.

Respondent holds license number CR21-228463-D issued by ROC. Josh McPherson, Respondent’s qualifying party appeared for Respondent along with legal counsel, Jeffery T. Brei., Esq.

The notice of hearing shows that the hearing was set to consider the charges made in the citation and the Complainant’s December 8, 2016 complaint.

In response to the complaint, ROC Inspector John Smith scheduled and conducted a jobsite inspection on the morning January 6, 2017. After having concluded his investigation, on January 10, 2017, Inspector Smith issued an ROC directive to the Respondent requiring it to remedy a number of specific items.

The items listed in the directive were not remedied within the time specified by the directive.

On February 6, 2017, the ROC issued a citation against the Respondent.

Through the citation, ROC alleges that Landscapes R Us Inc., may have violated ariz. rev. stat. §§ 32-1154(A)(2) , (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 Landscapes R Us Inc.’s license.

Between March 11, 2016 and August 25, 2016, the Respondent presented the Complainant with several written estimates and invoices for work providing the Complainant with certain landscape contractor services as described in the estimates and invoices. These written estimates and invoices are the sole basis of the agreement between the Complainant and the Respondent and represents the entire scope of work to be performed by Respondent. [Ibid].

The Respondent was warned by the ROC by letter on January 10, 2017, that it may have violated A.R.S. § 32-1158(B). Under that statute, any contract for more than $1,000.00 between a contractor and a property owner must contain nine specific elements. Respondent was advised that regarding the Complainant, its contract was missing at least one of the required elements.

The Complainant contends Respondent abandoned the project in that Respondent stopped work while waiting for a swimming pool contractor to finish its work before proceeding to finish, but never returned.

The Complainant contends that the Respondent demanded advanced payment for work not yet performed and that the Complainant refused payment.

The Respondent agrees that it did not comply with the directive and that it abandoned the project. However, Respondent asserts it has a lawful excuse for its conduct because it contends that as long as this job’s swimming pool contractor’s work remained unfinished, that Respondent was unable to perform.

Respondent attempted to return to the job site to perform but that because the swimming pool contractor was delayed in completing its job, the Respondent could not do its required work and was thereby denied access.

The Respondent maintains it made numerous efforts to communicate with the Complainant to make arraignments to get back on the site to complete performance, but the Complainant failed or refused to respond.

The Respondent also asserts justification for its abandonment because of Complainant’s non-payment.

The Respondent testified that the corrective work order in the directive was fair, accurate and is not disputed.

The Respondent testified that if the work required by the directive were first bid to three different contractors, the Respondent it is willing to pay the Complainant the value of the lowest bid to perform the work required by the directive.

CONCLUSIONS OF LAW

“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)(1).

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.

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

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: .... 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Complainant has not shown by a preponderance of the evidence that Respondent committed the alleged violation of Ariz. Rev. Stat section 32-1154(A)(2).

Complainant has demonstrated by a preponderance of the evidence that the Respondent abandoned this project. Notwithstanding, the greater weight of evidence demonstrated Respondent’s legal excuse in that it was denied access to the project by the delays caused by the Complainant’s swimming pool contractor and Complainant’s failure or refusal to communicate with Respondent so that it could return to the jobsite to finish its work.

The preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Complainant did not provide access to do the required work.

Considering the nature of the violation and that Complainant did not allow Respondent access to comply with ROC’s Directive, the Respondent should be afforded an opportunity to remedy the items stated in the directive by appropriate means.

RECOMMENDED ORDER

IT IS RECOMMENDED that

Complainant submit to Respondent three separate contractor bids to the to perform the repairs listed in the January 10, 2017 directive in this matter.

Further it is recommended the Respondent pay to the Complainant the amount cited by the lowest of the three submitted bids.

Further it is recommended that thirty days after the effective date of the final Recommended Order in this matter, Landscapes R Us Inc.’s license number CR21-228463-D is suspended for one day unless the Registrar of Contractors receives proof that Landscapes R Us Inc. has paid Complainant the amount indicated in paragraph 2 of this Recommended Order hereinabove.

Done this day, «Today: June 19, 2017

Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors