ALJDEC decisions subject to certification as final

2018A-3167-CHC-ROC · Registrar of Contractors · 2018-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 4, 2018 APPEARANCES: Complainant Franklin Patrick Russell appeared on his own behalf. Respondent Gary Ray Lambertson doing business as Exotic Creations Landscaping and Maintenance did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Gary Ray Lambertson doing business as Exotic Creations Landscaping and Maintenance (Respondent) is the holder of License No. 299439 issued by the Arizona Registrar of Contractors (Registrar). On or about February 26, 2018, Franklin Patrick Russell (Complainant) signed a contract with Respondent for, among other things, the installation of 975 square feet of pavers. On or about July 10, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Cliff Corlett. After a jobsite inspection, Investigator Corlett issued a written directive 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 notify the Registrar’s assigned Investigator of your compliance with this Directive, in writing, prior to 5:00 p.m. on August 7, 2018.

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

Jobsite General Notes: Respondent’s license was SUSPENDED on 7/1/17 for non-renewal and the license EXPIRED on 7/1/18. Contract and canceled check #627 show this project was contracted on or about 02/26/18 while the Respondent license was SUSPENDED. Respondent cannot do or sub-contract any of the corrective work outlined in this directive.

Complaint Item 1: Paver walkway does not flow water toward deck drains. Investigator’s Observation: Water flow is not properly directed toward deck drains. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. ******See last paragraph of this directive.***** Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

Complaint Item 2: Paver walkway ponds water. Investigator’s Observation: Walkway area was flooded and after 20- minutes there was still considerable water ponding at the front of the walkway behind the front gate. Water flowed to property line fence, not deck drains. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS. ******See last paragraph of this directive.***** Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.

. . . .

You are advised that if your license is suspended for administrative reasons[1] or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

You may not perform or hire other contractors to perform work that is outside the scope of your license If any workmanship violations listed above are designated as outside the scope of your license then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

If your license 299439 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

Following the issuance of the written directive, no work was done to comply with the written directive. After the deadline in the directive expired, Investigator Corlett was notified no corrective work had been performed. 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); A.R.S. § 32-1154(A)(17); and A.R.S. § 32-1154(A)(22). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on October 4, 2018. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on October 4, 2018. Complainant testified on his own behalf. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Investigator Corlett testified that Respondent’s license was suspended on July 1, 2017, for non-renewal and expired on July 1, 2018. Complainant testified that the paver work done by Respondent was ponding water and needed to be corrected. Administrative notice is taken of Respondent’s prior License record on October 23, 2018. Such prior License record reflects that Respondent’s License No. 299439 was first issued on June 17, 2015, and has been revoked. Such prior License record also reflects that there was one open complaint and one prior complaint resulting in discipline against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s administratively revoked license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C). 3. 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). 4. The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).[2] 5. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[3] 6. The evidence established that Respondent’s license was suspended on or about July 1, 2017, and Respondent entered into the contract with Complainant on or about February 26, 2018, while Respondent’s license was suspended. Therefore, Complainant established that Respondent entered into a contract while its license was suspended in violation of A.R.S. § 32-1154(A)(17).[4] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 299439. 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, October 23, 2018.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F). [2] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [4] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826