ALJDEC decisions subject to certification as final

05F-S0210-ROC · Registrar of Contractors · 2005-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2005, at 1:30 p.m. APPEARANCES: The Complainants appeared through their attorney, Jana E. Flagler. The Respondent appeared through its attorney, Dan Haws. . 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 Recommendation are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainants purchased a new residence from the Respondent. 3. The Complainants were dissatisfied with the amount of water the property’s shared water well produced and with the Respondent’s failure to resolve the water problem despite repeated demands. 4. When the Respondent failed to comply with the Complainant’s repeated demands, the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector issued a letter to the Respondent indicating the Respondent had ten days to resolve the matter or a citation could be issued against the Respondent’s contractors’ license. 6. No onsite inspection was performed and no Corrective Work Order was issued. 7. The Complainants then requested a formal hearing. 8. There was no dispute that the Respondent constructed the Complainants’ residence nor was there any dispute that the Respondent, utilizing a licensed well drilling contractor, caused the shared water well to be constructed. 9. Credible testimony or evidence, presented at hearing, established the workmanship in the actual drilling and construction of the water well is within applicable workmanship and industry standards. 10. Credible testimony and evidence established the Respondent indicated in the parties’ Sales Agreement and the Well Report that the shared water well produced five (5) gallons per minute. 11. The Respondent testified at the time of the sale the shared water well was producing five gallons per minute. The Respondent also testified there were no problems with the water well until the Complainants installed a swimming pool. 12. Credible testimony and evidence, presented at hearing, established the Complainants informed the Respondent they intended to install a swimming pool at the residence when they purchased their new residence. 13. After taking occupation of the residence the Complainants installed the new swimming pool and found the shared well was not producing sufficient water to fill the new swimming pool. 14. The Complainants then paid to have water trucked in to fill the swimming pool. 15. Credible testimony and evidence, presented at hearing, established the Complainants’ swimming pool has nothing to do with the amount of water produced by the shared well. 16. Credible testimony and evidence, presented at hearing, established the shared water well currently produces slightly less than one (1) gallon per minute and the water well was producing approximately the same amount of water when the Complainants first occupied their new residence. 17. Credible testimony and evidence, presented at hearing, established the water well is currently producing a sufficient amount of water to render the Complainants’ residence habitable. However, if a residence is constructed on the adjoining acre parcel the Complainants will loose access to one half (1/2) of the water produced by the shared water well. 18. The Respondent’s actions, in representing that the shared water well produced five (5) gallons per minute when the water well was actually producing less than one (1) gallon per minute and then declining to attempt to increase the amount of water produced by the shared well, are found to constitute a wrongful act. 19. Credible testimony and evidence, presented at hearing, established while the quantity and quality of water in a new well can not be guaranteed, the Respondent can take reasonable action to try and increase the amount of water available to the Complainants. 20. 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) (7) (Wrongful Act).

RECOMMENDation In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order the Respondent’s Class B- License be suspended until the Registrar of Contractors receives proof that the Respondent has, utilizing a licensed well driller, caused reasonable corrective action to increase the amount of water available to the Complainants. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension not take place and this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, October 18, 2005.

______________________________________ M. Douglas Administrative Law Judge Original transmitted by mail this ____ Day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Alicia Guerra 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 North Stone Avenue, Suite 704 Tucson, Arizona 85704 (520) 628-5488