ALJDEC - Licensing
2023A-09922-CHC-ROC · Registrar of Contractors · 2024-05-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Christensen,
COMPLAINANT,
v.
Plum Custom Landscapes and Design LLC
ROC License No. 278150,
RESPONDENT.
No. 2023A-09922-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 16, 2024 at 1:00 PM.
APPEARANCES: James Christensen (“Complainant”) appeared on his own behalf. Albert Bernal appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Jerry Galea appeared on behalf of Plum Custom Landscapes and Design LLC (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, and attached administrative agency file, was admitted into the evidentiary record.
_____________________________________________________________________
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 Arizona Administrative Code (“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 May 03, 2012, the Registrar issued License No. 278150 Specialty Dual CR-21 Hardscaping and Irrigation Systems contracting license to Respondent. The license has been renewed through May 31, 2024. Joseph Ryan Galea is listed as the Qualifying Party and Member on the license. Respondent’s address of record for the license is 3296 E. Milky Way Gilbert, Arizona 85295. Respondent had a $6,750.00 surety bond on the license from Western Surety Company, effective November 15, 2020, that was cancelled on an unknown date. On September 28, 2023, Respondent obtained another $6,750.00 surety bond for the license from Colonial Surety Company. The license had been disciplined on two (2) prior occasions, and has previously settled or otherwise resolved one (1) additional complaint. Currently, there is one (1) open complaint against the license which is presumed to be related to this matter.
On or about August 26, 2023, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 278150 alleging poor work of a residential landscaping project. The Registrar designated it Complaint No. 2023-09922 and assigned to Albert Bernal (“Investigator Bernal”) for investigation.
On August 28, 2023, Investigator Bernal issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on September 20, 2023, at 9:30 a.m. Correspondence was not returned as undeliverable to Respondent.
On September 20, 2023, Investigator Bernal inspected the work that had been performed on the project to date. Respondent was present. Investigator Bernal also reviewed the contract-related correspondence between the parties, and took 14 photographs of the project site. When he was finished, Investigator Bernal drafted his Inspection Notes. Ultimately, Investigator Bernal derived a total of five (5) separate and distinct complaint items, four (4) of which he substantiated based on his firsthand observations. Specifically, Investigator Bernal determined Respondent’s workmanship on complaint items 1-4 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
Investigator Bernal bifurcated complaint item 1 and substantiated subsection 1, but not subsection 2. Complaint item 5 was not substantiated.
On September 26, 2023, Investigator Bernal issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated most of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on October 20, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). The following advisement was included in the Directive:
Restrictions
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.
(Emphasis in original.)
Correspondence was not returned as undeliverable to Respondent.
On January 03, 2024, Investigator Bernal issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on January 11, 2024, at 11:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On January 11, 2024, Investigator Bernal inspected the corrective work that had been performed on the project, and took 5 photographs of the project site. Respondent was not present. When he was finished, Investigator Bernal drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Bernal determined that Respondent had satisfactorily remediated previously substantiated complaint items 3 and 4, but that Respondent had not satisfactorily remediated previously substantiated complaint items 1 or 2.
On January 19, 2024, Investigator Bernal forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On January 24, 2024, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until February 08, 2024, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.
On February 08, 2024, the Registrar received Respondent’s timely Answer whereby Mr. Galea reviewed the scope of work performed on the project, and denied the allegation of poor workmanship.
On February 12, 2024, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 09, 2024. Per the February 23, 2024, 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)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on his own behalf and called Investigator Bernal as a witness. Mr. Galea testified on behalf of Respondent. The substantive evidence of record is as follows:
Complainant owns residential property located at 4749 S. Venus Mesa, Arizona 85212.
On or about April 20, 2022, the parties entered into a construction agreement whereby Complainant agreed to pay Respondent $58,709.30 for the installation of irrigation and drainage, pavers, trees, artificial turf, ground rock, and a block wall in his backyard.
On August 30, 2022, a $645.84 Change Order was executed for the addition of a fountain.
Work on the project took place between April 20, 2022, and September 22, 2022.
Complainant paid Respondent $59,355.14 in full for the project.
On an unknown date, License No. 278150 was suspended by the Registrar for lack of bond. The suspension was lifted on October 11, 2023.
On October 20, 2023, Complainant emailed the following:
Joey,
Haven’t heard any proposed dates to do the work. We are open and don’t have conflicts.
Thanks
Jim
At no point in time did Respondent allege a denial of access to the project site to the Registrar during the Directive’s compliance period, or request an extension thereof to the agency.
The parties did not enter into a settlement agreement for substantiated complaint items 1 and/or 2.
Additional Evidence
Regarding the lights, Mr. Galea testified that the manufacturer’s business sold, resulting in unavailability of product. As a result, he purchased comparable materials without executing a Change Order or informing Complainant.
Mr. Galea also testified that he received the Compliance Jobsite Inspection Notification Letter but did not attend because he was scheduled to be out of town during the inspection. Mr. Galea did not request that the date be modified so that he could attend.
Closing Arguments
In closing, Mr. Galea noted that he loves his jobs, pleasing customers with his work, and hoped to continue working under License No. 278150 without suspension.
In closing, Complainant argued that he had sustained his burden of proof regarding Ariz. Rev. Stat. §§ 32-1154 (A)(3) and (A)(22), as the violations pertain to substantiated complaint items 1 and 2. Complainant conceded that Mr. Galea’s design was “fantastic” and agreed that he enjoys his backyard, but noted that he felt mislead by Respondent and did not get exactly what he paid for.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.
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 for the Registrar 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)(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] contractor shall perform all work 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) holds, 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 holds that no 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.”
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are clear.
It is clear from the record that the parties had a hardscaping and landscaping construction contract that Complainant paid in full to Respondent. It is also clear from the record that there were deficiencies in Respondent’s work that required correction, and that Respondent did not fully comply with the Registrar’s Directive, or request an extension thereof.
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 remediate Complainant’s project per the terms of their 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. Here, Mr. Galea admitted that he substituted materials without Complainant’s knowledge or consent. Additionally, the record reflects that Respondent performed corrective work between October 11, 2023, and October 20, 2023, after the suspension of License No. 278150 was lifted by the Registrar. It cannot reasonably argued that Respondent had insufficient time to perform corrective work, as the record also clearly reflects that Mr. Galea never asked for an extension of the Directive’s compliance period and could have entered into a settlement agreement with Complainant.
Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3) 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 in 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, based on the egregiousness of its conduct in this matter, Respondent Plum Custom Landscapes and Design LLC, ROC License No. 278150, be suspended for two (2) business days.
It is further recommended that the Registrar require Respondent to pay the sum total of $50.00 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 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.
NOTICE
Pursuant to Ariz. Rev. Stat. § 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 28, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Plum Custom Landscapes and Design LLC, Respondent
3296 E. Milky Way
Gilbert, AZ 85295
[email redacted]
James Christensen, Complainant
4749 S. Venus
Mesa, AZ 85212
[email redacted]
By: OAH Staff