ALJDEC decisions subject to certification as final

2020A-05079-CHC-ROC · Registrar of Contractors · 2021-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marie Wise,

COMPLAINANT,

v.

Gary Ray Lambertson

DBA: Signature Landscaping and More,

License No. ROC 325775,

RESPONDENT.

No. 2020A-05079-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 16, 2021

APPEARANCES: Complainant Marie Wise appeared on behalf of herself. Respondent Gary Ray Lambertson did not appear.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

FINDINGS OF FACT

1. In or about September of 2020, Complainant Marie Wise and Respondent Gary Ray Lambertson entered into a contract wherein Mr. Lambertson would perform landscaping at Ms. Wise’s residence, for the amount of $6,250.

2. Ms. Wise paid Mr. Lambertson a down payment in the amount of $3,125.

3. On or about October 26, 2020, the Arizona Registrar of Contractors (Registrar) received a complaint from Ms. Wise alleging abandonment on the part of

Mr. Lambertson.

4. Registrar Investigator Lisa Melton investigated the complaint.

5. On December 2, 2020, the Registrar issued a Citation alleging that

Mr. Rambertson may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1).

6. On December 17, 2020, Mr. Rambertson filed a timely answer to the Citation alleging that Ms. Wise fired him. Mr. Rambertson asserted that he did not abandon the project.

7. The matter was referred to the Office of Administrative Hearings.

8. A hearing was held on March 16, 2021.

9. At hearing, Investigator Melton provided testimony regarding her investigation of the complaint. Investigator Melton explained that during her investigation, Mr. Rambertson informed her that he had been fired by Ms. Wise.

10. Ms. Wise asserted that Mr. Rambertson abandoned the project and held her down payment for months. Ms. Wise admitted that Mr. Rambertson paid her $3,125 before the hearing.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.R.S. § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

A.R.S. section 32-1154(A) provides:

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.

7. The preponderance of the evidence does not show that Mr. Lambertson abandoned the project. Upon consideration of all the evidence, the Administrative Law Judge concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provision A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this matter be dismissed.

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, March 22, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors