ALJDEC - Licensing
2024A-06216-CHC-ROC · Registrar of Contractors · 2024-10-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Cherrelle Spraggs
COMPLAINANT,
v.
APEX Landscape LLC
License No. ROC 328162,
RESPONDENT.
No. 2024A-06216-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 3, 2024
APPEARANCES: Complainant Cherelle Spraggs (Complainant) represented herself. No one appeared on behalf of Respondent APEX Landscape, LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Exhibit A: The Registrar’s administrative record.
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FINDINGS OF FACT
1. On August 19, 2024, the Arizona Registrar of Contractors (Registrar) mailed a Notice of Hearing to Complainant and Respondent at their addresses of record, setting the above-matter for hearing on October 3, 2024 at 9:00 a.m. The Notice of Hearing provided, in relevant part, as follows:
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You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.
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The complaint and citation allege that the Respondent committed the following act(s): Charge: 1 A.R.S. § 32-1154(A)(3) - R4-9-108(a) Charge: 2 A.R.S. § 32-1154(A)(22)
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Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing. Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge.
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2. A hearing was held on October 3, 2024.
3. At hearing, Complainant testified on behalf of herself.
4. No one appeared on behalf of Respondent at the hearing on October 3, 2024. Although the hearing did not start until approximately 9:15 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
5. On or about May 3, 2024, Complainant and Respondent entered into a contract, wherein Respondent would install artificial turf, pavers, and rocks in Complainant’s backyard, for the amount of $5,200.
6. On or about May 4, 2024, Respondent started work.
7. The parties subsequently entered into a series of additional agreements. Respondent agreed to charge Complainant for only one pallet of pavers because she never received three pallets that were specified in the original invoice. Additionally, because Respondent installed three mismatched turfs, Respondent agreed to replace her existing turf with one 10 x 19 turf. Respondent also provided Complainant with a $470 discount. Based upon the agreements, Respondent revised the original invoice and the total contract price was $3,870.
8. Complainant paid Respondent the full contract price of $3,870.
9. Respondent last worked on the project on June 3, 2024.
10. Complainant filed a complaint with the Registrar alleging abandonment and poor work on the part of Respondent.
11. On or about June 13, 2024, John Peru, an investigator for the Registrar, notified Respondent that Complainant had filed a complaint against its license.
12. On or about June 28, 2024, Investigator Peru conducted a job-site inspection. Complainant was present along with Respondent’s qualifying party, Damian Lujan.
13. At the job-site inspection, Mr. Lujan acknowledged that the turf needed to be corrected. Investigator Peru’s notes form the job-site inspection provide, “Both parties have acknowledged that the Rear Yard layout will be reduced in width slightly to accommodate a "single piece," of turf, so that there will not be any seams.”
14. On or about July 8, 2024, the Registrar issued a Directive to Respondent directing Respondent to correct the following complaint item by appropriate means, no later than July 23, 2024 at 5:00 p.m:
Complaint Item: 1 - Turf installation is not complete. Missing an area of turf, measurements incorrect, seems are visible, should be one Investigator’s Observation: Verified. At the time of this Inspection, the Respondent has acknowledged that the seams and mismatched turf will need to be corrected. Both parties have acknowledged that the Rear Yard layout will be reduced in width slightly to accommodate a "single piece," of turf, so that there will not be any seams. REF: (JSI PICS).
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. A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship.
15. Respondent did not correct Complaint Item 1 by July 5:00 p.m. on July 23, 2024.
16. On July 29, 2024, the Registrar issued a Citation against
Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(3) - Ariz. Admin. Code R4-9-108(A); Ariz. Rev. Stat. § 32-1154(A)(22).
17. Mr. Lujan filed a timely answer to the Citation on behalf of Respondent.
In the answer, Mr. Lujan acknowledged that Respondent was given a chance to correct its work. Mr. Lujan requested another opportunity to prove Respondent’s trustworthiness to Complainant and the Registrar. The answer provided, in relevant part, as follows:
To whom this may concern, I am the owner of apex. We have been giving a chance to resolve project and the date to finish, due to divorce and family split up I was left with my kids. I don’t have a excuse for my lack of communication, all I’m asking for is a chance to prove not to just the client but to Arizona Contractors and the community’s that I am trust worthy and honest, everything me and my team specialize in we give it our best. We hope to learn from our mistakes as a team and have the opportunity to close project for client. One last extension would be greatly preferred if possible. Thank you
18. The matter was subsequently referred to the Office of Administrative
Hearings (OAH) for an evidentiary hearing.
19. Administrative notice is taken of Respondent’s prior License record as
reflected on the Registrar’s public website on October 10, 2024. Such prior License record reflects that Respondent’s License No. ROC 328162 and is currently active.
Such prior License record also shows that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.
CONCLUSIONS OF LAW
This matter lies within the Registrar’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.
3. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code § R4-9-118.
4. 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).
5. The preponderance of the evidence shows that the issues found
by Investigator Peru in complaint item 1 demonstrate that Respondent failed to perform work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
6. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a 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 ROC License: No. 328162 held APEX Landscape, LLC for three days.
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. section 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, October 10, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Cherrelle Spraggs
[email redacted]
APEX Landscape LLC
[email redacted]
By: OAH Staff