ALJDEC

01F-T0421-ROC · Registrar of Contractors · 2001-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2001; at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. The Respondent’s License was suspended on May 3, 2000 and December 11, 2000. 2. This is a residential matter where the Complainant entered into a written agreement with the Respondent for the purchase of a residential lot and the construction of a new residence for the total sum of $89,000.00. 3. The residential lot failed a county required perk test and the Respondent was unable to install a normal septic system for the lot. 4. Credible evidence established that the Respondent refused to install an alternative type of septic system and refused to construct the Complainant’s new residence. 5. Credible evidence, produced at hearing, established that the Respondent had prior knowledge that the residential lot was located in areas that had an abundance of fractured rock and had a high clay content and that the leech field trenches would have to be opened and examined before the county would issue a permit for the installation of a normal septic system test. 6. Credible evidence established that the Respondent either knew or should have known about the problems with the construction site and either knew or should have known that an alternative type of septic system would be required by the county. 7. There was no dispute that the Respondent refused to install an alternative type of septic system and failed to construct the residence as per the parties’ written agreement. 8. While the parties were waiting for the results of the perk test, the Respondent withdrew the total sum of $13,100.00 from the Complainant’s construction account. 9. There was no dispute that the Respondent declined to return any of the money that he had obtained from the Complainant’s construction account despite the fact that he had refused to install an alternative type of septic system and refused to construct the residence. 10. Credible testimony established that the lending institution which funded the construction loan has foreclosed on the lot and obtained a civil judgment against the Complainant in the approximate sum of $11,000.00. 11. The Respondent’s actions, in entering into an agreement to sell a residential lot and construct a new residence on a residential lot that he either knew or should have known would require an alternative septic system and then refusing to have an alternative septic system constructed and in refusing to construct the new residence despite taking money from the Complainant’s construction account, are found to constitute a wrongful act. 12. The Respondent’s actions, in entering into an agreement to construct a new residence and then refusing to actually construct the residence based upon the Respondent’s refusal to construct an alternative type of septic system, are found to constitute abandonment. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A)(1)(7) (Wrongful Act). 2. In determining an appropriate disposition of this matter, proper consideration must be given to the suspended status of Respondent’s License at the present time. Little, if any, motivation would exist for a contractor to perform corrective action in order to avoid the imposition of a suspension upon an already suspended license. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B- License be revoked. Done this day, November 6, 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of November, 2001, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488