ALJDEC decisions subject to certification as final

2020A-04333-CHC-ROC · Registrar of Contractors · 2021-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brain Chris Hengl,

COMPLAINANT

Gary Ray Lambertson,

License No. 325775,

RESPONDENT

No. 2020A-04333-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 27, 2021

APPEARANCES: Complainant Brian Chris Hengl appeared on his own behalf via Google Meet. Steve Philpott, 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 June 12, 2020, Brian Chris Hengl (Complainant) entered into an agreement with Gary Ray Lambertson (Respondent) to install a paver driveway at his personal residence in Prescott, Arizona for $23,000.00. Complainant paid Respondent $11,500.00 as a down payment.

On or about September 8, 2020, the Registrar received a Complaint containing one item against Respondent from Complainant alleging Respondent had abandoned the project.

The Registrar assigned the complaint to Investigator Steve Philpott. The initial inspection was performed on September 30, 2020.

Investigator Philpott then issued a written directive on or about September 30, 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 October 30, 2020.

. . .

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

Compliance Item: 1 - 1. Signature Landscape was hired to put in a paver driveway at my new home. We agreed on $23,000.00 total price, he wanted and i paid him $11,500.00 to buy the pavers and they promised they would start the next week. We have not seen them since. No work has stared on the project.

Investigator’s Observation: Investigator’s Observation: This complaint item is verified. It is not uncommon for unforeseen conditions to occur in the construction industry. The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract. Respondent shall correct by appropriate means.

Governing Rule: Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award A. 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. 3. Violation of any rule adopted by the registrar. RULE 4-9-108 WORKMANSHIP STANDARDS: Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

(All errors contained in the original).

Following the issuance of the written directive, no compliance inspection was performed.

On November 12, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about November 17, 2020, Respondent sent an email to the Registrar informing them that he had paid Complainant $10,500.00 and requested that the case be dismissed.

On November 23, 2020, the Registrar denied the request to dismiss as Complainant notified the Registrar that $1,000.00 was still due.

On December 15, 2020, a Notice of Hearing on Contested Case was issued, which set a hearing on January 27, 2021 at 1:00 p.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 January 4, 2021, 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, Investigator Philpott testified to the above and added that while Respondent failed to appear at the jobsite inspection, he left a voicemail for Mr. Philpott the next day communicating that he would be returning $10,500.00 to Complainant.

Investigator Philpott also testified that there was no formal contract between the parties, rather just an invoice with the amount due.

Investigator also testified that Respondent has had his license revoked two other times in the past, and also was issued two recent warning letters about failing to meet the minimum elements of a contract.

Complainant testified that he has been a licensed Arizona contractor since 1989, and could not understand how Respondent still had a license.

Complainant further testified that Respondent was very unprofessional by avoiding calls, being rude when there was contact, and even threatened to meet him and “rough” him up.

In addition, Complainant testified that when there was a discussion of a refund, Respondent claimed that there were costs that he incurred and would not refund the entire amount. Complainant testified that he was unsure of what Respondent’s exact costs were because all that was done was a bid. However, Complainant testified that he would accept to only have $10,500.00 returned provided it was paid within a couple of days. Complainant testified that when Respondent did not pay as agreed, he was seeking to recover the entire amount.

Complainant next testified that Respondent later sent a text message stating that he would only pay $10,500.00, and did finally pay the same. Complainant testified however, that this was not the agreement, and was still seeking to collect the remaining $1,000.00.

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 27, 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 four 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 received Complainant’s money for the down payment and did not commence work without a valid justification. Therefore, Complainant established that Respondent violated of A.R.S. § 32-1154(A)(1), and A.R.S. § 32-1154(A)(3) namely A.A.C. R4-9-108(B).

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).

The Complainant and Registrar provided evidence that only an invoice was exchanged, thus the agreement failed to meet the minimum elements for a contract. Therefore Complainant established that Respondent violated A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1158.

Given Respondent’s actions in this case as well as his other past cases, the tribunal concludes that revocation of Respondent’s license is the only acceptable resolution to this matter. Accepting money and not commencing work as well as threatening to beat up clients is unacceptable behavior, and revocation will protect the public from Respondent and his actions.

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. 325775.

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 40 days from the date of that certification.

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-137160-45720000Done this day, February 1, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000