ALJDEC - Licensing
2023A-07271-CHC-ROC · Registrar of Contractors · 2024-01-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Susanna Martinez,
COMPLAINANT
v.
A&L Landscaping LLC
License No. ROC 329630,
RESPONDENT
No. 2023A-07271-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 15, 2023
APPEARANCES: Susanna Martinez appeared on her own behalf. Respondent failed to appear.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.
_____________________________________________________________________
FINDINGS OF FACT
A&L Landscaping LLC (Respondent) is the holder of License No. 329630 issued by the Arizona Registrar of Contractors (Registrar).
On or about July 28, 2022, Susanna Martinez (Complainant) entered into a contract with Respondent for the installation of pavers, gravel and artificial turf.
On or about July 26, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Mike Springer. After a jobsite inspection, Investigator Springer issued a written directive to Respondent that provided as follows:
After investigation, the Registrar determined that you failed to meet the requirements of 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 September 19th, 2023.
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:
Compliance Item: 2 - The artificial grass was coming up when hosed down. The pavers are not acceptable. Not enough sand and poor work. Investigator’s Observation: The border around all of the turf is loose. Border along the South side of the main lawn area is cut short. Borders along the flagstone path are cut short, tearing and the edge material can be seen. Turf should be tight against the walkway.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 6 - Contractor stopped taking our calls and never returned texts. Always late. Not professional on schedule. He caused a lot of stress and worries on the amount of money we paid him. Workers did not have experienced. Since he took so long to complete the job, unfortunately for us we had to hire help to correct some of the problems. It has been a long stressful 6 months. We tried to contact him to avoid filing this complaint but he never returned our phone calls.
Investigator’s Observation: Complaint items have been left unaddressed by Respondent.
Governing Rule: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
All errors in original.
Following the issuance of the written directive, Respondent took no action. After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).
On October 27, 2023, the Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on December 15, 2023. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A December 7, 2023 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on December 15, 2023.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Springer testified consistent with his written directive. He also testified that he forwarded the matter to the Registrar’s legal department to cite Respondent for violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22). He testified that with regard to Ariz. Rev. Stat. § 32-1158, the contract was missing specifically requirements #1, #4 and #9.
Complainant testified consistent with the findings of Investigator Springer. Specifically, Complainant testified that the pavers were crooked, the sides of the turf were cut short, and the tearing and edge material was visible underneath the turf.
Administrative notice is taken of Respondent’s prior License record on December 15, 2023. Such prior License record reflects that Respondent’s License No. 329630 was first issued on July 10, 2020, and is currently active. Such prior License record also reflects that there was this open complaint and one other open complaint. Additionally there were two prior complaints resulting in discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
The evidence established that Respondent failed to include requirements #1, #4 and #9 of Ariz. Rev. Stat. § 32-1158 in its contract with Complainant. Therefore, Complainant established that Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(12), namely Ariz. Rev. Stat. § 32-1158.
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 Ariz. Rev. Stat. § 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. 329630 for a period of 10 days.
It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with Ariz. Rev. Stat. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, January 4, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Susanna Martinez
524 E Mallard Cir
Sierra Vista, AZ 85635
[email redacted]
A&L Landscaping LLC
128 N 6th St
Sierra Vista, AZ 85635
[email redacted]
By: OAH Staff