ALJDEC decisions subject to certification as final
2022A-02844-CHC-ROC · Registrar of Contractors · 2022-09-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Leea Arnold,
COMPLAINANT,
v.
Greenscape LLC
ROC License No. 234695,
RESPONDENT.
No. 2022A-02844-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 19, 2022 at 1:00 PM.
APPEARANCES: Leea Arnold (“Complainant”) appeared on her own behalf. Jim Dimond appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Jeffrey Siet appeared on behalf of Greenscape LLC (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On March 13, 2018, the Registrar issued License No. 234695 Specialty Dual CR-21 Hardscaping and irrigation Systems contracting to Respondent. The license was issued on July 18, 2007, and placed on inactive status for the first time on June 28, 2022. Jeffrey David Siet is the Qualifying Party/Member on the license. Respondent’s address of record for the license is PO Box 3515 Sedona, AZ 86340. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective July 01, 2014. There is no prior discipline noted for the license, save one open complaint which is presumably Complainant’s.
On April 08, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 234695 alleging poor workmanship of their project. The Registrar designated it Complaint No. 2022-02844 and assigned to Jim Dimond (“Investigator Dimond”) for investigation.
On April 12, 2022, Investigator Dimond issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on August 11, 2020, at 12:30 p.m.
On May 03, 2022, Investigator Dimond performed his jobsite inspection. Respondent was not present. Investigator Dimond conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 29 photographs of the project site. When he was finished, Investigator Dimond drafted his Inspection Notes. Ultimately, Investigator Dimond determined that there were a total of 8 individual complaint items contained within the underlying complaint. Of those, Investigator Dimond substantiated 6 complaint items. Specifically, Investigator Dimond substantiated complaint items 1, 3, and 5-8. Investigator Dimond concluded that Respondent’s work on the project failed to meet the Registrar’s minimum workmanship standards.
On June 13, 2023, Investigator Dimond issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated a majority of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on June 30, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).
A compliance jobsite inspection was not performed in this matter because Respondent did not performed any corrective work during the Directive compliance period.
On June 30, 2022, Investigator Dimond forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On July 05, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until July 20, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On July 20, 2022, the Registrar received Respondent’s Answer. In pertinent parts, Mr. Siet noted that he relocated out of state in December of 2021, after he was fired by Complainant. At that time Respondent closed the business, placed its license in inactive status, and gave all of its equipment away. Per Mr. Siet, when the parties “parted ways” Respondent was paid for the work that was done and forgave the outstanding balance on the contract owed by Complainant for incomplete work. Mr. Siet advised that he was unable to perform corrective work because he no longer had employees.
On August 12, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 28, 2021. Per the August 17, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(2)(a)
Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 3: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Dimond as a witness. Jeffrey Siet testified on behalf of Respondent. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 2200 S. Tissaw Cornville Rd., AZ 86325.
On or about September 13, 2021, Complainant and Respondent entered into a $35,580.00 for the installation of a 5ft tall chain-link fence, putting green, water feature, hot tub pad, walkway, driveway, and landscaping at Complainant’s residence. Per the contract, work was to commence on September 22, 2021, and finish on October 20, 2021.
Complainant paid $27,790.00 towards the project.
The project commenced on September 22, 2021, and was stopped around December 30, 2021.
On or about December 30, 2021, Complainant asked Respondent to cease performance on the contract. Respondent agreed, as Mr. Siet admitted there had been significant labor and material delays that caused the project to run longer than quoted. To that end, the parties agreed to waive the balance Complainant owed on the contract.
Mr. Siet shuttered Respondent’s doors on December 31, 2021, and relocated to Florida on Monarch 01, 2022.
On an unknown date in April 2022, Mr. Siet submitted an inactive license status request to the Registrar, which was approved June 28, 2022.
Complainant rejected Respondent’s mid-September 2002 settlement offer.
As of the date of the hearing, complaint items 1, 3, and 5-8 remained unrepaired and unaddressed by Respondent.
In closing, Respondent argued that he could not be disciplined by the Registrar regarding the underling complaint because his license was inactive.
In closing, Complainant argued that she wanted her project completed, or to receive “financial remuneration” as an alternative.
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 OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
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.
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)(2)(a) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, in pertinent part, “Departure from or disregard of plans or specifications in any material respect that is prejudicial to another without consent of the owner.”
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(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, 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) provides, 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 provides that “[n]o 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.”
The material facts in the case are not in dispute.
It is undisputed that the parties had a multi-part contract, whereby Complainant paid the contract in full and Respondent’s work on the project failed to meet the Registrar’s minimum standards for which a Directive was issued. It is also undisputed that Respondent failed to address the Directive.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain its burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project. Mr. Siet’s assertion that he “closed” his business does not absolve his duty to perform corrective work, and Mr. Siet’s belief that the Registrar lacks the authority over his license because License No. 234695 is inactive is incorrect. Moreover, attempts Respondent made to settle the matter with Respondent in September 2022 are irrelevant.
Therefore, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Greenscape LLC, ROC License No. 234695, be suspended for five (5) days based on its violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(a), 32-1154(A)(3), and 32-1154(A)(22).
IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $100.00 (one hundred) in certified funds as a civil penalty in this matter.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Final Order, the Registrar shall 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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.
Done this day, September 27, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
Greenscape LLC
PO Box 3515
Sedona, AZ 86340
Leea Arnold
360 Leea Lane
Weatherford, TX 76087
By Miranda Alvarez
Legal Secretary