ALJDEC decisions subject to certification as final

2019A-01306-CHC-ROC · Registrar of Contractors · 2019-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alex Lucio Battistessa,

COMPLAINANT,

v.

Dale Bryan Weinhold,

dba Botanical Images Landscape

ROC License: ROC 283142

RESPONDENT.

No. 2019A-01306-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 25, 2019 at 1:30 PM.

APPEARANCES: Alex Lucio Battistessa (“Complainant”) appeared on his own behalf with Randy Morris as a witness. No appearance(s) by or on behalf of Dale Bryan Weinhold (“Respondent”), dba Botanical Images Landscape. J. Evans observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On January 25, 2013, the Registrar issued License No. 283142 for specialty dual CR-21 hardscaping and irrigation systems contracting to Respondent. Respondent’s address of record for the license is 9265 E Grandview St., Mesa, AZ 85207-4318. Dale Bryan Weinhold is listed as on the license as Respondent’s Owner.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior License record, for License No. 283142, as reflected on the Registrar’s public website on November 25, 2019. Such prior License record reflects that Respondent’s license is currently suspended. The license has not been previously disciplined by the Registrar. The record also reflects that there is one complaint against Respondent’s license, which is presumed to be related to this matter.

On or about January 14, 2019, Complainant and Respondent entered into a contract agreement whereby Respondent agreed to build an exterior residential perimeter block wall located at 3380 E. Sunnydale Dr., Queen Creek, AZ 85142 for the sum total of $19,000.00. The project commenced on February 01, 2019, and stopped on March 08, 2019.

Per contract, Complainant was to provide a 40% deposit (e.g. $7,600.00) to Respondent for the project, followed by another 20% (e.g. $3,800.00) payment at the start of the job. Upon completion, Complainant was to tender final payment to Respondent (e.g. $7,600.00).

On March 15, 2019, the Registrar an abandonment complaint from Complainant, which included a copy of the parties’ contract and proof of payments Complainant tendered to Respondent.

On March 18, 2019, the Registrar issued a Jobsite Inspection Notification Letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on April 19, 2019, at 9:30 a.m.

On April 11, 2019, the Registrar issued a Rescheduled Jobsite Inspection Notification Letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on April 19, 2019, at 2:00 p.m.

On April 19, 2019, Registrar investigator Randy Morris (“Investigator Morris”) conducted a review of the contract executed between the parties and inspected the work that had been done on the project to date. Respondent did not attend. Investigator Morris took nine photographs of the project. When he was finished, Investigator Morris drafted Jobsite Inspection Notes.

On May 15, 2019, Investigator Morris issued a Directive from the Registrar to Respondent because he determined that Respondent’s work on the project failed to meet minimum workmanship standards. Specifically, Investigator Morris noted that the only work performed was the installation of footing and rebar, and that no materials were observed on the jobsite. Respondent was ordered to complete the project per contract via appropriate means. Respondent was put on notice that he had until 5:00 p.m. on June 03, 2019, to notify the Registrar of his compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).

Respondent failed to timely comply.

On June 17, 2019, Investigator Morris escalated the matter to the Registrar’s legal department with a citation recommendation for violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-018, 32-1154(A)(1) and 32-1154(A)(22).

On July 22, 2019, the Registrar issued a Citation and Complaint to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); a violation of Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until August 06, 2019, to respond with his Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On August 06, 2019, Respondent provided his Answer to the Registrar. Respondent provided, in pertinent part, that he had not timely completed Complainant’s project per contract because he had suffered from identity fraud and had lost money as a result. Respondent argued that because Complainant had been reimbursed by his banking institutions, and retained approximately $6,000.00 worth of work that had been performed which would not be returned to Respondent, that the complaint against him should be closed.

On August 07, 2019, the Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on September 16, 2019. Per the August 13, 2019, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”)

Charge 2: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Charge 3: A violation of A.R.S. § 32-1154(A)(22) (“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.”).

Hearing Evidence

Complainant testified on his own behalf and also called Investigator Morris as a witness. No testimony for or on behalf of Respondent was offered. The Registrar’s electronic hearing file and Notice of Hearing were admitted into the evidentiary record.

Investigator Morris’ testimony

Per Investigator Morris, the underlying project was for a newly built residential property. During his jobsite inspection, Investigator Morris observed that the perimeter had been trenched and some concrete had been poured for the foundation of the wall.

Necessary remediations were within the scope of Respondent’s license.

After the Directive was issued, Investigator Morris spoke with Mr. Weinhold who alleged that the reason he had not completed the project was due to bankruptcy.

No attempts to remediate or enter into settlement were undertaken by Respondent.

Complainant’s testimony

Complainant testified that he was paired with Respondent in January 2019 through a Quote Support Program offered at a local home improvement store, and therefore he forwent vetting Respondent on his own.

Complainant purchased most of the materials needed for this project directly from the home improvement store.

On January 14, 2019, Complainant issued a payment of $7,600.00 to Respondent using a MasterCard credit card. On January 31, 2019, Complainant issued a payment of $3,970.00 to Respondent using a MasterCard credit card. On March 05, 2019, Complainant issued a payment of $1,840.00 to Respondent through PayPal.

All charges have been conditionally returned to Complainant, pending the outcome of disputes he has filed with both banking institutions. If Respondent contests the reversals Complainant may be charged the total disputed amount.

On July 27, 2019, Complainant’s home was burglarized.

On August 15, 2019, Complainant arranged for another contractor to complete his perimeter wall to prevent further unpermitted entry into his residence.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and 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.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 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.”

Ariz. Admin. Code 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.”

Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.”

Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

Here, the material facts are not in dispute.

It is undisputed that the parties’ had a contract agreement, that Complainant tendered payments to Respondent per the terms of said agreements, and Respondent failed to complete the underlying job. Complainant has also established by a preponderance of the evidence that Respondent failed to timely comply with the Directive issued by the Registrar in this matter.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to address the remediation action items outlined in the Registrar’s Directive by the compliance deadline. This is an affirmative defense that Respondent bears the burden to establish. Respondent did not provide evidence in mitigation to refute Complainant’s evidence or justify his inaction in this matter. Thus, Respondent’s burden has not been sustained. The record shows that Respondent failed to adhere to a Directive issued by the Registrar, and had no affirmative defense(s) for doing so.

Because Complainant established by a preponderance of the evidence that Respondent failed to adhere to an issued Directive regarding Respondent’s abandonment and poor workmanship, Complainant has also established cause for the Registrar to take disciplinary action against Respondent’s contractor’s license under Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS RECOMMENDED that the five days after the effective date of the Final Order in this matter, Respondent Dale Bryan Weinhold, dba Botanical Images Landscape, ROC License No. 283142, be revoked based on his violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22).

IT IS FURTHER RECOMMENDED that Registrar require Respondent to pay the sum total of $300.00 in certified funds as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).

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, December 06, 2019.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors