ALJDEC decisions subject to certification as final

06F-S0121-ROC · Registrar of Contractors · 2007-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2007, at 9:00 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 K-41 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a septic system and leach field for the Complainant’s residence. 3. A representative of Santa Cruz County Health Services informed the Complainant that one of the Respondent’s employees had informed the County Health Services that the Complainant’s septic system had not been properly installed. The County Health Services requested permission to examine the Complainant’s septic system. 4. The Complainant gave his permission and on December 9, 2005, the County exposed the Complainant’s septic system. A copy of the County’s Statement of Facts was introduced into evidence and is attached hereto as Exhibit No. A. 5. The Statement of Facts provides, in pertinent part, as follows: “After a section of trench approximately 2 to 3 feet wide and 3 to 4 feet deep was exposed, all parties present agreed that the leach rock extended no more than 4 to 8 inches below the perforated pipe, and digging was discontinued. The results, then were as follows: -Total trench depth 3 to less than 4 feet (versus 5 ½ feet per plan); -4 to 8 inches of leach rock below the perforates pipe (versus 4 feet called for in the plans); -8 or more inches of leach rock above the pipe (versus 2 inches per plan); - No newspaper or geotextile above the pipe and rock cover; -1 foot (or less) of native soil cover over rock.” 6. Despite the County’s inspection the Respondent performed no work on the Complainant’s septic system. 7. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work and filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection; no Corrective Work Order was issued. 9. At the hearing the Agency Inspector testified that if he had seen the Statement of Facts issued by the Santa Cruz County Health Services he would have required the Respondent to remove and reinstall the Complainant’ septic system and leach lines in compliance with approved plans and specifications and in accordance with applicable code requirements. 10. The Respondent’s actions, failure to perform its construction work in accordance with applicable plans and specifications and applicable code requirements, failure to properly correct its work despite having knowledge that the septic system had not been properly installed, and failure to comply with applicable code requirements, are found to constitute a wrongful act. 11. 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), and (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class K-41 License shall be REVOKED unless the Registrar of Contractors receives proof that the Respondent has properly corrected the Complainant’s septic system and leach lines and has obtained written approval of the corrected septic system from the Santa Cruz County Health Systems.. 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 revocation shall not take place and that, instead, the Respondent’s Class K-41 License shall be suspended for a period of thirty (30) days. 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, June 19, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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 85701 (520) 628-5488