ALJDEC

99F-M1471-ROC · Registrar of Contractors · 2000-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2000. APPEARANCES: The Complainant, Glinda Walkup, appeared personally. The Respondent did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The commencement of the scheduled hearing was delayed for 15 minutes to allow for the late arrival of the Respondent or an attorney authorized to represent him. Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Respondent is found to have had proper notice of the instant hearing. A copy of the Notice of Hearing was mailed by the Registrar of Contractors to Respondent at 6881 E. Highway 60, Apache Junction, Arizona 85219. A review of the official records of the Registrar reveals that address to be Respondent’s address of record with that agency. 2. In November, 1998, Complainant hired Respondent to perform landscaping services at her residence. Respondent’s scope of work included killing existing grass in Complainant’s yard, and supplying and installing landscape rock. Although Complainant had requested that Respondent lay plastic on the ground prior to the placement of the rock, Respondent advised her that his practice was not to lay plastic but to control grass by applying pesticides to kill grass. 3. Complainant paid Respondent the contract price $637.36 for his landscaping services. 4. After Respondent completed his work, Complainant’s yard continued to experience grass growing where Respondent had treated, including grass heights up to 5 inches. 5. Respondent’s subsequent attempts were unsuccessful in preventing grass growth in the treated yard. 6. As a result of Respondent’s inability to eliminate the grass growth, Complainant filed a complaint with the Registrar of Contractors alleging that Respondent had violated provisions of the State’s contracting laws in the performance of his landscaping services. 7. In response to the filed complaint, the Registrar’s assigned agency inspector performed a jobsite inspection to view the landscaping work performed by Respondent at Complainant’s residence. That inspection resulted in the issuance of a Corrective Work Order which required Respondent to timely re-treat all areas of rock in Complainant’s yard where grass was present. 8. Respondent failed to timely comply with the Registrar’s Corrective Work Order. Complainant ultimately had to have the proper work performed by others. 9. Complainant filed a civil action in the East Mesa Justice Court seeking damages resulting from Respondent’s failure to perform the landscaping services to minimum workmanship standards. Complainant obtained a civil judgment against Respondent in the amount of $1,564.38 for damages and costs. No appeal was taken in that matter. The judgment has not been satisfied. 10. Respondent’s failure to perform his landscaping work to minimum workmanship standards, his failure to comply with the Registrar’s written directive to correct his deficient workmanship and his failure to satisfy the civil judgment for damages he caused Complainant are wrongful acts which have substantially injured Complainant.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7), (23) and (3); namely Rule R4-9-108. 2. The Registrar of Contractors may impose a civil penalty of not to exceed $500.00 on a licensed contractor for each violation of A.R.S. § 32-1154 (A). The totality of the evidence of record supports the imposition of a substantial civil penalty by the Registrar in this matter. 3. The Registrar of Contractors may impose specific conditions on the license of a contractor who is found to have violated the provisions of A.R.S. §32-1154(A). A.R.S. §32-1154(B) A determination of the amount of damages suffered by Complainant resulting from Respondent’s violation of A.R.S. §32-1154 (A) has already been established by the Justice Court in the parties’ final civil litigation. The evidence of record supports the Registrar’s imposition of a condition requiring Respondent to satisfy the civil court judgment in order to avoid the revocation of its Class B-05R license.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license be revoked on the effective date of the entered Order in this matter. It is further recommended that if Respondent pays the sum of $1,564.38 to Complainant in satisfaction of the aforementioned civil court judgment on or before the effective date of the Order entered in this matter and advises the Registrar of Contractors in writing that the payment has been made, then the above-provided license revocation shall not take place, but instead that Respondent’ Class C-21 license shall be placed on suspension for a period of five days followed immediately by a period of disciplinary probation for 90 days. This alternative penalty shall commence, if at all, on the effective date of the entered Order in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative disciplinary penalties, if any, that Respondent pay the sum of $150.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154 (D). The failure by Respondent to pay the entire amount of that civil penalty on or before 30 days following the effective date of the entered Order in this matter shall result in the automatic revocation of Respondent’s contractor’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 payment of any outstanding civil penalty is tendered. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative penalties, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152(C). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 24 month period and only if no claims are then pending. Done this day, February 23, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater, Director ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826