ALJDEC decisions subject to certification as final

2016A-4975-ROC · Registrar of Contractors · 2017-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William and Deborah Burkett,

COMPLAINANTS,

v.

Ricketts Landscaping LLC,

License No. CR21.280521-D,

RESPONDENT.

No. 2016A-4975-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 10, 2017, at 1:00 p.m.

APPEARANCES: William and Deborah Burkett (“Complainants”) appeared on their own behalf; Ricketts Landscaping LLC (“Respondent”) appeared through Travis Ricketts, member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about August 13, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR21.280521-D for dual landscaping and irrigation systems to Respondent.

On or about December 12, 2016, Complainants filed a complaint with the Registrar alleging that the new driveway surface that Respondent had installed in March 2015, at Complainants’ property at 13281 Main Street, Mayer, Arizona 86333, had begun to deteriorate after the first rain.

Complainants stated on the complaint that their contract with Respondent was both written and oral. Complainants attached to their complaint Respondent’s brochure with the handwritten notation, “Deposite [sic] of $5500.00 115 x 12 Boarder [sic] sec [illegible] 25 Feb 15.” The brochure included Respondent’s license number, but not the acronym “ROC,” did not include Complainants’ mailing address or the jobsite address, the estimated date of completion of the job, a description of the work to be performed, or the total dollar amount to be paid to Respondent, and did not advise Complainants of their right to file a complaint with the Registrar for Respondent’s alleged violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A) or provide the Registrar’s telephone number and website address.

The Registrar assigned the complaint to its Investigator, Jim Dimond, for investigation. Investigator Dimond performed a jobsite inspection and on January 9, 2017, on behalf of the Registrar issued a Directive to Respondent to repair the conditions of the driveway surface and the existing drainage swales on or before January 25, 2017, at 5:00 p.m.

After Respondent failed to comply with the Directive, Investigator Dimond referred the complaint to the Registrar’s Legal Department.

On January 31, 2017, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(22), and A.R.S. § 32-1154(A)(12), namely, A.R.S. §§ 32-1124(B) and 32-1158(B).

On February 15, 2017, Travis Ricketts filed a written answer to the complaint on behalf of Respondent, stating that the brochure was not the parties’ contract, that Respondent would present a contract that complied with A.R.S. §§ 32-1124(B) and 32-1158(B) at the hearing, and that Respondent was “working towards a remedial action in regards to the surface of the driveway with the corrective actions of the other drainage issue.”

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On April 10, 2017, a videoconference hearing was held from the Registrar’s Flagstaff office. Complainants testified and submitted 15 exhibits. Respondent presented the testimony of Mr. Ricketts. Investigator Dimond also testified.

/ / / /

Hearing Evidence

On February 27, 2017, OAH issued an order advising the parties that because the hearing would be held via videoconference, they were required to submit their exhibits seven days prior to the scheduled hearing date of April 10, 2017. Respondent did not submit any exhibits. At the videoconference hearing, Mr. Travis showed a purported contract that complied with A.R.S. §§ 32-1124(B) and 32-1158(B). Complainants testified that they had never before seen the document and did not sign it.

Investigator Dimond testified that Complainants had given him a sample that Respondent had provided that showed the way that the product that it had applied to their driveway was supposed to look, which had the appearance of a rice crispy bar.

Investigator Dimond testified that the product that Respondent applied to the driveway was not maintaining its integrity and that 99% of the product was failing.

Investigator Dimond testified that the rip rap that Respondent had installed in drainage swales that it had manipulated as part of the project had shrunk and that, as a result, water was not making it into the drainage swale and was causing erosion on the backside of the swale.

Mr. Ricketts testified that he did not have confidence that he could use the same product to repair Complainants’ driveway and that he was trying to determine what product Respondent could use to repair the driveway. Mr. Ricketts did not dispute that the driveway and drainage swale did not comply with the Registrar’s or industry standards and needed repair.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. As of this date, no discipline had ever been taken against Respondent’s license. Between February 5, 2015, and February 23, 2015, the license was administratively suspended for lack of bond and between September 1, 2014, and February 23, 2015, the license was administratively suspended for non-renewal.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish cause to suspend or revoke Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish 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.”

Respondent acknowledged that the driveway surface and the drainage swale did not comply with the Registrar’s or industry standards and required repair and that Respondent had not complied with the January 9, 2017 Directive by repairing these items. Therefore, Complainants established cause to discipline Respondent’s contractor’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).

Complainants established that the only writing between the parties was Respondent’s brochures. Because Respondent’s license number on the brochure was not preceded by the acronym, “ROC,” and the brochure did not contain all the elements that A.R.S. § 32-1154(B) requires, Complainants established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(12), namely, A.R.S. §§ 32-1124(B) and 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. CR21.280521-D of Respondent Ricketts Landscaping LLC shall be suspended for five business days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 license, 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)(6), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that on or before thirty days after the effective date of the order, Respondent shall provide to the Registrar a written contract form that demonstrates to the Registrar’s satisfaction that Respondent’s current business practices comply with the requirements of A.R.S. §§ 32-1124(B) and 32-1158(B). If Respondent fails to demonstrate to the Registrar’s satisfaction that Respondent’s current business practices comply with the requirements of A.R.S. §§ 32-1124(B) and 32-1158(B), its license shall be suspended until such time as Respondent demonstrates to the Registrar’s satisfaction that Respondent’s current business practices comply with the requirements of A.R.S. §§ 32-1124(B) and 32-1158(B).

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, April 11, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors