ALJDEC - Licensing
2023A-09557-CHC-ROC · Registrar of Contractors · 2024-05-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Don LoGuercio
COMPLAINANT,
v.
Lavender Landscape Design Co. LLC
License No. ROC 326465,
RESPONDENT.
No. 2023A-09557-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 22, 2024
APPEARANCES: Complainant Don LoGuercio (Complainant) represented himself. Bill Terborg represented Lavendar Landscape Design co. LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None.
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent holds license number 326465 issued by the Registrar of Contractors (Registrar or ROC).
2. On February 6, 2024, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on April 22, 2024, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
3. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Respondent may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3)(specifically, Arizona Administrative Code (A.A.C.) section R4-9-108(A); A.R.S. section 32-1154(A)(22).
4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
5. On or about September 25, 2021, Complainant and Respondent entered into a residential construction contract wherein Respondent would install a new pool and perform landscaping work at Complainant’s home.
6. On or about September 25, 2021, Respondent began work.
7. On or about August 17, 2023, Respondent stopped work.
8. On or about August 21, 2023, Complainant filed a complaint with the ROC alleging poor workmanship on the part of Respondent. Through the complaint, Complainant alleged that Respondent began construction without having obtained all required permitting, and the project had not passed all required inspections.
9. The ROC assigned the complaint to its Investigator, Lisa Melton.
10. On or about October 19, 2023, ROC Investigator Melton conducted a job-site inspection.
11. On November 3, 2023, the ROC issued a Directive to Respondent. Through the Directive, the Registrar directed Respondent to correct compliance items 1 through 6 and 10 through 14, by appropriate means, no later than November 20, 2023.
12. On November 17, 2023, Complainant provided a correction notice from the building official. See the ROC’s administrative record, pg. 47 and 58.
13. As a result, on December 6, 2023, the Registrar issued an Amended Written Directive (Amended Directive) to Respondent. Through the Amended Directive, the Registrar directed Respondent to correct compliance item 15, in addition to the compliance items listed in the November 3, 2023 Directive, no later than December 22, 2023. See the ROC’s administrative record, pg. 47.
14. On January 10, 2024, Investigator Melton conducted a compliance job-site inspection. Investigator Melton found that the only items that Respondent had failed to correct were compliance items 1, 4, 11, and 15.
15. On February 6, 2024, the ROC issued a Citation against Respondent’s license for alleged violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
16. Respondent filed a timely answer to the Citation.
17. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
18. A hearing was held on April 22, 2024.
19. At hearing, Complainant testified on behalf of himself. Bill Terborg,
Respondent’s construction manager and Tyler Tew, a partner of Respondent, testified on behalf of Respondent. Investigator Melton testified regarding her job site inspections and issuance of the Directive.
20. Investigator Melton stated that she received a request from Respondent to extend the timeline for performance under the Amended Directive at 7:21 p.m. on December 22, 2203, after the Directive expired. Investigator Melton denied the extension request.
21. Investigator Melton explained that on December 21, 2023, she received an email from Complainant regarding an inspection with the City of Phoenix that was held on December 18, 2023. Complainant stated that the City of Phoenix denied an engineer’s special inspection certificate provided by Respondent because it was obtained through the City of Scottsdale instead of the City of Phoenix, the permitting jurisdiction. Furthermore, Complainant was concerned because Respondent’s representative stated that it would need to cut a 3 foot section of Ramada out and leave it exposed until a solution could be determined by the engineer. Complainant was subsequently filed a complaint with the Arizona Board of Technical Registration.
22. Mr. Terborg explained that its engineering firm put the special inspection certificate on the City of Scottsdale letterhead instead of the City of Phoenix letterhead. Mr. Terborg explained that the mistake was corrected on or about December 19, 2023. After the December 18, 2023 inspection with the City of Phoenix, Mr. Terborg stated that he realized it would need more time to get the engineering report completed. Mr. Terborg stated that the delays in retrieving the permit were due to circumstances outside of his control such as getting reports back from the engineer. Mr. Terborg explained that its subcontractor submitted pictures to the engineering company which were not photos of Complainant’s home.
23. Mr. Tew stated that there were delays caused by the engineering company and the City of Phoenix. Mr. Tew admitted that the framing inspection was not timely requested during instruction.
24. Upon consideration, the Administrative Law concludes that due to mistakes made by its own subcontractors and engineering firm, Respondent failed to comply with the Amended Directive.
25. Administrative notice is taken of the Registrar’s public website on May 13, 2024. According to the information available on the website, Respondent’s license was first issued on October 8, 2019, and is active. Such prior License record also shows that there are three open complaints against Respondent. Such prior License record also shows that one complaint was resolved/settled by Respondent.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
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).
4. The Administrative Law Judge may consider the ROC’s administrative record. See A.A.C. R9-9-118.
5. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the ROC’s Directive without valid justification, which is a 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 ROC shall suspend Lavender Landscape Design Co. LLC license number 326465 for 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)(7), 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, May 13, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Don LoGuercio
[email redacted]
Lavender Landscape Design Co. LLC
[email redacted]
By: OAH Staff