ALJDEC decisions subject to certification as final

2020A-03012-CHC-ROC · Registrar of Contractors · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ross W Lubic,

COMPLAINANT

v.

Gary Ray Lambertson

License Number ROC 325775,

RESPONDENT

No. 2020A-03012-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 15, 2021

APPEARANCES: Complainant Ross W. Lubic appeared on his own behalf via Google Meet. Sheldon White, Investigator for the Registrar of Contractors appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Gary Ray Lambertson (Respondent) is the holder of License No. 325775 issued by the Arizona Registrar of Contractors (Registrar) on August 12, 2019.

On or about October 27, 2019, Ross W. Lubic (Complainant) signed a contract with Respondent for installation of artificial turf and pavers at a senior living home in Prescott Valley, Arizona.

On or about June 22, 2020, the Registrar received a Complaint containing ten items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Sheldon White. The initial inspection was performed on July 8, 2020.

Investigator White then issued a written directive on or about July 23, 2020 to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on August 24, 2020.

. . .

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

Compliance Item: 1 - Irrigation system not properly turned off from tree and bush removal. The tubing was left above the ground and still connected.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that there are several removed plants with the irrigation system watering where they were. Refer to the following photos related to this complaint item:3-6

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Sprinkler system left on under turf. The turf was installed over existing sprinkler system. This has created pockets of water underneath the installed turf.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that there are pockets from water and the turf becomes flooded when the irrigation system is turned on. Refer to the following photos related to this complaint item:7 & 8

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Old pavers never removed from property or flagstone walkway.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that old pavers were left at jobsite. At Jobsite inspection the Respondent admitted he had agreed to remove old pavers. Refer to the following photos related to this complaint item: 9 & 10

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Water leaking under the pavers that were installed on the driveway.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that water leaks under pavers close to house and has a significant leak just outside pavers toward street on east side of driveway. Refer to the following photos related to this complaint item: 2 & 11

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Verbal understanding that the need for this project was for residents of the home that have mobility issues. Needing ADA requirements for safety. Turf is not leveled creating fall risks.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that there are pockets from water and the turf has become unlevel with unseen depressions which are fall hazards. Refer to the following photos related to this complaint item: 7 & 8

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Drainage pipes in driveway were never made level. They were left above the pavers and are now crushed and disfigured.

Investigator’s Observation: The Registrar received and investigated your complaint. The Registrar determined that the west outlet pipe is above pavers and crushed. Refer to the following photos related to this complaint item: 12 & 13

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, a compliance jobsite inspection occurred on August 5, 2020, per agreement of the parties. However, since the work was still incomplete, another compliance inspection was scheduled for August 25, 2020.

Investigator White completed the second compliance jobsite inspection. In his Notes regarding the same, Investigator White noted that Respondent failed to comply with Directive 2 and 6.

On August 28, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1124(B) and A.R.S. § 32-1154(A)(22).

On December 15, 2020, a Notice of Hearing on Contested Case was issued, which set a hearing on January 15, 2021 at 9:00 a.m. at the Office of Administrative Hearings, an independent state agency. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

On December 16, 2020, the tribunal issued an Order converting the hearing to Google Meet, and this order was mailed and emailed to Respondent at its addresses of record.

At hearing, Complainant testified that the project was for a senior living facility and he believed that the artificial turn would be easier for the residents to move about with less chance of injury.

Complainant further testified that Respondent was very unprofessional by avoiding calls, being rude when there was contact and leaving materials at the jobsite.

In addition, Complainant testified despite the parties’ agreement to have an inspection within two weeks of the Directive being issued, Respondent delayed until the day of the inspection to commence work on the Directive.

Finally, Complainant testified that due to Respondent cutting and capping the water lines, no water was flowing to other areas of the property which resulted in dead plants around the property.

Investigator White testified generally about the Registrar’s involvement and his notes from his inspections.

Investigator White testified that while some areas were repaired, water remained underneath the turf, and the irrigation system had been rendered useless due Respondent’s cutting and capping of the water line in the backyard.

Finally, Investigator White testified that a pre-hearing inspection was also conducted on January 12, 2021. As a result of that inspection, Directive items 1, 2, and 6 were not compliance.

Although the start of the hearing was delayed fifteen minutes, Respondent did not appear through an authorized member, employee, or attorney, nor request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on January 15, 2021. Such prior License record reflects that Respondent’s License No. 325775 was first issued on August 12, 2019 and is currently active. Such prior License record also reflects that there were 4 open complaints, which included the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Pockets of water formed on top of the turf due to the irrigation system not being properly removed. Further, when it was eventually removed, the water line was cut and capped thereby rendering the whole irrigation system in non-working order. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent failed to complete 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).

No evidence was provided as to the charge of violating A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158, thus Complainant has not met his burden.

No evidence was provided as to the charge of violating A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1124(B), thus Complainant has not met his burden.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 325775 for a period of ten days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 final order, the Registrar 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 30 days from the date of that certification.

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-137160-45720000Done this day, January 25, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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