ALJDEC decisions subject to certification as final

2022A-06843-CHC-ROC · Registrar of Contractors · 2023-01-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Gansel,

COMPLAINANT

Plum Custom Landscapes and Design LLC,

License No. ROC 278150,

RESPONDENT

No. 2022A-06843-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 9, 2023

APPEARANCES: Complainant Steven Gansel appeared on his own behalf. Joseph Galea, Owner and Qualifying Party, appeared on behalf of Respondent Plum Custom Landscapes and Design LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Plum Custom Landscapes and Design LLC (Respondent) is the holder of License No. 278150 first issued by the Arizona Registrar of Contractors (Registrar) on May 3, 2012.

On or about May 7, 2022, Steven Gansel (Complainant) entered into a contract with Respondent for the construction of a pergola on his property. Complainant paid Respondent a deposit of $4160.00 towards the total contract price of $7278.22.

On or about August 15, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Wes Ellington. After a jobsite inspection, Investigator Ellington issued a written directive to Respondent that provided as follows:

A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 7, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: Plum Custom Landscape has contracted with the Complaint to construct a pergola. He has accepted a deposit and has abandoned the project.

Investigator’s Observation: Abandonment verified, no work has been started. The Respondent is not properly licensed to construct a pergola and no permit was obtained. The Respondent will work with the Complainant on finding a properly licensed contractor to obtain the required permit and complete the job as per contract at the Respondent’s expense.

Governing Rule: Workmanship Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Workmanship rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Following the issuance of the written directive, Respondent performed no work on the project. After the deadline in the directive expired, Investigator Ellington was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(22).

Investigator Ellington testified as to his observations of the jobsite and that no work had been performed on the project. Investigator Ellington also detailed Respondent’s licensing history. According to Investigator Ellington, Respondent’s license was suspended at the time of the jobsite inspection and written directive. Investigator Ellington noted that Respondent’s license was suspended due to non-renewal.

Complainant testified that he had paid Respondent the deposit of $4160.00 at the time the parties entered into the contract. Complainant stated that no work was completed on the project.

Mr. Galea testified that Complainant had paid $4160.00 as a deposit on the project. Respondent then used the money to pay a supplier for the materials needed. Mr. Galea indicated that after Respondent paid for the materials, he was notified that the owner of the company had died suddenly and the business was closing. Mr. Galea stated he had attempted to recover the money he had paid to the company without success. Mr. Galea denied that Respondent failed to perform any work on the project as he did measure and mark the location of the pergola on the site. Mr. Galea denied knowing that Respondent’s license was suspended for non-renewal at the time of the hearing.

Administrative notice is taken of Respondent’s prior License record on January 10, 2023. Such prior License record reflects that Respondent’s License No. 278150 was first issued on May 3, 2012, and was renewed through May 31, 2022. As of January 10, 2023, Respondent’s license was suspended for non-renewal. Such prior License record also reflects that there were no other open complaints and two prior complaints that resulted in discipline against Respondent’s license.

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 Vazzano 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 entered into a contract with Complainant, accepted a deposit of $4160.00 for Complainant’s project, and did not perform any substantial the work on the project. Accordingly, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent did not attempt 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).

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. 278150 for a period of five 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)(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.

-54864001

001

-137160-45720000Done this day, January 10, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Plum Custom Landscapes and Design LLC

5442 W Encanto Paseo

Queen Creek AZ 85142-3260

[email redacted]

Steven Gansel

21328 E Misty Ln

Queen Creek, AZ 85142

[email redacted]

Wes Ellington

[email redacted]

By-54864001

001

-137160-45720000 Miranda Alvarez

Legal Secretary