ALJDEC

00F-H0255-ROC · Registrar of Contractors · 2001-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2000, in Kingman, Arizona. Post-hearing submissions were allowed, and the record was then to be concluded on February 8, 2001. APPEARANCES: Complainant Daniel Hartley appeared, representing himself. Respondent Richard Lee Proctor did not appear, but sent William Eversole to the hearing, who was allowed to testify as a witness to the matter in supplement to the existing Registrar of Contractor’s record provided to this tribunal. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent was the installation contractor for a septic tank and lines at 19893 Normandy in White Hills/Dolan Springs, Arizona. At the time, Respondent was the holder of a Class K-41 license issued by the Registrar. 2. On May 2, 2000, Complainant filed a formal complaint with the Registrar against Respondent. Complainant’s filed complaint indicates the contract in this matter was verbal. Complainant’s filed complaint: “About 30-40 tons of Dirt left in Huge piles said as soon as he got rental equipment he would finish the job.”

3. As a result of receiving the complaint, the Registrar’s Inspector scheduled a site inspection, held on May 30, 2000. On May 30, 2000, the Inspector issued Registrar’s Corrective Work Order (CWO) indicating that Respondent was to “level out or remove excess dirt from septic system.” The CWO calls for Respondent to make these corrective repairs within fifteen days. 4. The matter was not resolved and, in June 2000, Complainant requested a hearing. 5. On July 26, 2000, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.23, and 32-1154.A.3, specifying Arizona Administrative Code (A.A.C.) R4-9-108. 6. On July 29, 2000, Respondent filed his written answer with the Registrar. Overall, Respondent indicates that the septic installation work was done in November 1999 for Bill Eversole, “mortgage holder of property”, and Bob Harper, “owner of property at time of installation“. Respondent stated: “Mr. Harper wanted the mound of dirt left as is” and indicated the Harpers enjoyed sitting on it and intended to use it as a foundation for a future house. Respondent’s answer stated that he had no oral or written agreement with Complainant Hartley, and that Mr. Hartley adversely took over Mr. Harper’s mortgage position on December 14, 1999 and refused to pay Mr. Eversole for installation of the septic tank. Respondent’s answer also stated that Mr. Hartley acquired the property in “an as is” condition. Respondent’s answer also stated that the tank was correctly installed and approved, and that the dirt poses no safety hazard. 7. The matter was again not resolved informally, and proceeded for hearing, which the Registrar set for December 2000. 8. Respondent filed his Motion for a Continuance, indicating that he was a student at University of Wisconsin, and would not be available for a hearing until after the spring semester ended. Complainant objected to the continuance, and the Respondent’s request was denied. The ORDER denying the continuance informed Respondent of the possibilities for his own presentation or legal representation. 9. At the time of the hearing, non-legal representation in the person of William Eversole, arrived on behalf of Respondent, but Mr. Eversole was not allowed to represent Respondent in the formal administrative hearing. Administrative Notice was taken of the records previously supplied to the Tribunal by the Registrar, including all papers previously submitted to the Registrar by the parties, and William Eversole was permitted to present witness testimony regarding the matter. 10. At the hearing, Complainant testified that they purchased the property on November 15, 1999, which he indicated was prior to the septic tank being inspected. Complainant testified that he had a conversation with Respondent at the time of the installation (he said, late November 1999) , wherein Respondent had said to him that when he got more rental equipment in the area that he would come and smooth the dirt out. At the hearing, Complainant stated: “I hope he remembers” [the conversation]. Complainant requested that the dirt be put back the way the Registrar intended it to be corrected. Complainant also requested that he receive his [extremely high, he said] attorney’s fees in this matter, but had no documentation regarding applicable attorney’s fees. 11. Mr. Eversole testified that he had sold Lot 13 to the Hartleys and Lot 14[1] to Mr. Harper. Mr. Eversole testified that he felt bad for the Harpers’ circumstances, with no electricity on the property; Mr. Eversole testified that the septic tank had to be in place in order for the electricity to be brought in to the site. Mr. Eversole testified that he agreed with Mr. Harper to have a septic tank put in, at cost plus 10 percent, and that Mr. Harper was to pay him back over a year’s time. Mr. Eversole testified that he asked his step-son, Respondent Proctor, to put in the septic tank [done on November 24, 1999] and that he paid Respondent Proctor for the job on November 29, 1999. Mr. Eversole testified that he understood the deed/land contract between Harper and Hartley to have taken place on December 14, 1999, and not in November 1999. 12. Registrar’s Inspector testified that at the site inspection, he had heard Mr. Eversole and Mr. Hartley agree that Mr. Hartley would pay for the septic tank if he could get the invoices and a lien release. Registrar’s Inspector testified that Mr. Eversole had later phoned him saying that his attorney would send Mr. Hartley’s attorney a copy of the invoice. 13. Pursuant to the post-hearing schedule, Respondent filed additional papers, in response to the hearing testimony. Respondent indicated that his contract was between he and Mr. Eversole, and that that contract was completed. Respondent indicated that the septic tank installation passed [county] inspection and was covered by the proper amount of dirt. Respondent indicated that the excess dirt was left, as Mr. Harper had wanted it to be left. Respondent submitted a letter from Mrs. Harper and a chronology from Mr. Eversole. 14. Complainant argued, in reply, that there was collusion between Mr. Eversole and Proctor, and that there was no reason for Mr. Eversole to have paid Mr. Proctor $2,200.00 on November 29, 1999 when Mr. Eversole had already paid for the materials as the tank was being installed. Complainant argued that, although Mr. Proctor indicated that the exchange was outlined in a contract, that no contract existed because it was a verbal agreement between Mr. Eversole and Robert Harper to work it off for an Arizona room. Complainant argued that Mr. Eversole was upset that Mr. Harper had sold the land to Mr. Hartley, but that Mr. and Mrs. Hartley offered to make up any loss to Mr. Eversole and Mr. Proctor if they would finish the job and provide receipts and lien releases. Complainant argued that Mr. Eversole instead wanted to put the Hartleys in foreclosure to get back the improved land. Complainant argued that his attorney had tried to get the whole matter settled several times. Complainant pleaded that they want Respondent to finish the job and want to obtain their attorney’s fees.

15. Complainant submitted his documentation on a November 1999 transaction. See Hearing Exhibit D. The Transnation Title Insurance account servicing documents from November 15, 1999 show only that an account is being opened to deal with documents, assignments and payments between Mr. Harper and Mr. Hartley. 16. The Warranty Deed between Mr. Harper and the Hartleys[2] is dated December 10, 1999 and was recorded on December 14, 1999. 17. The Mohave County documents show that the septic tank and lines were permitted on November 8, 1999, and were inspected on November 24, 1999. See Hearing Exhibit E. There is no indication on the submitted paperwork that the county’s inspection determined any problems or necessary work to be done or completed. 18. Respondent has not done any additional dirt work since the issuance of the Registrar’s CWO. However, Complainant’s photographic evidence shows that some land clearing and dirt work has been done on the property since the complaint was filed. See difference between Exhibits A and B [taken on April 18, 2000 and Exhibit C [unknown date, but stated to be “the current state of the land” by Complainant]. It is unknown who did what work when or why these mounds of dirt near the septic tank were not taken care of at that time. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 3. Violation of any rule adopted by the Registrar; specifically Arizona Administrative Code (A.A.C.) R4-9-108[3]. … xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar... .

CONCLUSIONS 1. The hearing testimony indicates that there was no written executed contract setting forth any person’s responsibilities or agreements in this matter. The verbal nature of a contract leads to inevitable disagreements when one person becomes dissatisfied for whatever reason. In this case, Complainant has not shown that there was any verbal agreement between he and Respondent regarding the displaced dirt on the property. Respondent denied the existence of an agreement with Complainant in his answer to the Registrar’s Citation and Complaint. No impartial witnesses were presented to document any meeting between Complainant and Respondent, or any work relationship between Complainant and Respondent, or any agreement between Complainant and Respondent springing from the time of the septic tank installation. 2. There was insufficient evidence of any wrongful or fraudulent act by Respondent in this matter. There was insufficient evidence of any violation by Respondent of workmanship standards regarding the installation of the septic tank and lines and the requisite finishing work, including the excess dirt. Based on the foregoing, the evidence and testimony at the hearing established no violation, by Respondent, of A.R.S. §§32-1154.A.7, 32-1154.A.23 or 32-1154.A.3. RECOMMENDED ORDER In view of the foregoing, based on finding insufficient evidence of violations by Respondent, IT IS RECOMMENDED that this Citation, No. H00-0255, together with the Complaint on which it is based, be dismissed. RECOMMENDED this day, February 20, 2001.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of February, 2001 to:

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

By ___________________________ ----------------------- [1] Paperwork filed with the Registrar on May 15, 2000 shows a Warranty Deed for Lot 14 from TWE Retirement Fund Trust, Mr. William Eversole as Trustee, to Mr. Robert Harper. This Deed is dated February 2, 1999, and was recorded on March 4, 1999. [2] Paperwork filed with the Registrar on May 15, 2000 shows a second Warranty Deed for Lot 14. This Warranty Deed is from Mr. Robert Harper to Daniel and Olivia Hartley. This Deed is dated December 10, 1999, and was recorded on December 14, 1999. [3] A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827