ALJDEC decisions subject to certification as final

2020A-05384-CHC-ROC-RES · Registrar of Contractors · 2021-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Diane Secosky,

COMPLAINANT

Gary Ray Lambertson,

License No. ROC 325775,

RESPONDENT

No. 2020A-05384-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2021

APPEARANCES: Complainant Diane Secosky appeared on her own behalf via Google Meet. Jim Dimond, Registrar of Contractor Investigator 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 May 1, 2020, Diane Secosky (Complainant) entered into an agreement with Gary Ray Lambertson (Respondent) to install a pavers at her summer residence in Prescott, Arizona for $16,000.00. Complainant paid Respondent $8,000.00 as a down payment.

On or about November 15, 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 Jim Dimond. The initial inspection was performed on December 3, 2020. Respondent was not present at the same.

Investigator Dimond’s notes from the inspection indicated the following:

Compliance Item: 1 - Work was never started. Materials that were paid for have not been delivered. the down payment of $8000 has not been returned as requested.

Investigator’s Observation: I met with the complainants and I observed that no pavers have been installed and no pavers had been delivered to the site.

I had the complainants describe what was supposed to happen with the pavers and they indicated that they were to go from the road, up the hill and terminate where the drive area widens out.

Correspondence between the parties shows that the respondent was encouraged to perform.

Governing Rule: Abandonment of a contract without legal excuse ARS 32-1154.A.1

(All errors contained in the original).

Mr. Dimond testified that after consulting with the legal department at the Registrar, they decided that it was best to proceed with issuing a citation.

On December 16, 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)(12) namely A.R.S. § 32-1124(B) and A.R.S. § 32-1158.

On or about December 17, 2020, Respondent sent an email Answer to the Citation to the Registrar informing them that it was fired from the job and COVID caused the shipment of pavers to be delayed, and that the case should be dismissed.

On December 21, 2020, the Registrar denied the request.

On February 5, 2021, a Notice of Hearing on Contested Case was issued, which set a hearing on March 8, 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 February 10, 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 Dimond testified to the above dates and incidents.

Investigator Dimond also testified that elements of the contract were missing such as Respondent failing to include his license number, no expected completion date and the “right to file” language.

Finally, Investigator Dimond testified that on March 4, 2021 he conducted a pre-hearing inspection and noted that there was no work commenced at the house.

Complainant testified that she never fired Respondent from the job, and that as late as January 12, 2021 she stated she was still willing to work with Respondent to have him complete the job.

Complainant further testified that Respondent notified her that there were issues in receiving the pavers, and was patient with Respondent.

Complainant testified that in October, Respondent contacted her and said he had the pavers and wanted to know if she still wanted the same installed. Complainant stated that she did, and when she followed up again in early November she was again met with various excuses why Respondent could not complete the job.

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 March 9, 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 six 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).

The evidence also established that Respondent failed to place his license number on the contract in violation of A.R.S. § 32-1154(A)(12) namely A.R.S. § 32-1124(B).

Finally, the evidence established that the contract failed to meet the minimum elements for a contract as it failed to contain the license number, failed to include a completion date as well as the “right to file” language. 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, March 12, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000