ALJDEC

02F-H0263-ROC · Registrar of Contractors · 2002-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, November 14th, 2002; 8:30 a.m. APPEARANCES: Complainant, Ms. Wanda Charlene Smith, represented herself. Respondent, Mr. Larry Marshall McCall, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

The administrative hearing of this matter was held by the Office of Administrative Hearings, in Kingman, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent herein, Larry Marshall McCall, doing business as McCall Construction, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C- 41R License number 081748. 2. Complainant, Wanda Charlene Smith, purchased her home in Kingman, Arizona, from a Mr. and Ms. Koll, trustees for The Koll Family Trust, in April of 2002. 3. Complainant had viewed the property before her purchase of it, and was attracted by the number of mature trees in the back yard. 4. Prior to the sale and purchase of the property the respondent was contracted by the title company involved in the transaction to install a new septic system in the back yard. Respondent was paid for the installation by the Koll trust from the proceeds of the sale. 5. Pursuant to the written contract between respondent and the Kolls, it was agreed that respondent would not be held responsible for “any damage to existing landscaping, utilities, fencing or trees.” The lot was a small fenced-in lot, only 50’ x 45’. Respondent was going to have to use a backhoe to install the septic tank. 6. When respondent installed the septic tank, extensive damage was done to the existing trees, and afterwards respondent performed no landscaping. 7. Complainant was upset by this situation and filed the instant complaint against respondent with the Registrar of Contractors on May 17th, 2002. No job-site inspection was performed and no Corrective Work Order was issued. Complainant requested an administrative hearing on her complaint. A citation and complaint was issued from the registrar’s office on July 16th, 2002, citing respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 8. This hearing was scheduled and noticed to be held on November 14th, 2002, and was held as noticed. CONCLUSIONS OF LAW 1. This hearing was held pursuant to and in accordance with A.R.S. §32- 1156, and A.R.S. §41-1092. 2. Respondent is charged with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the instant citation and complaint is A.A.C. R4-9-108, Workmanship Standards. There is no evidence that respondent violated this rule. The facts show that the lot was a small, fenced-in lot, and use of a backhoe was required to install the septic. Damage to the trees was going to be unavoidable in these facts, and they are why the contract contained the pertinent provision. There is no evidence, indeed no allegation, of any other unprofessional or unworkmanlike aspect of respondent’s work. Respondent did not violate A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with any of the contractor laws of the State of Arizona, without valid justification, within a reasonable amount of time, after having received a written directive from the registrar to do so. There is no written directive from the registrar in this case. Respondent did not violate A.R.S. §32-1154.A.23. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of wrongful or fraudulent conduct on the part of respondent. Respondent did not violate A.R.S. §32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint No. H02-0263, together with the complaint on which it is based, be dismissed. Done this day, November 22nd, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of November, 2002, to:

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

By ____________________________ -----------------------