ALJDEC decisions subject to certification as final

07F-S0120-ROC · Registrar of Contractors · 2007-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8th, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. David Shiflett, represented himself. Respondent, Mr. Brian Clar Vaught, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

CONCLUSIONS OF LAW 1. Respondents, Mr. Brian Clar Vaught and Ms. Abelina Mary Vaught, partners doing business as ABC Pump and Well Drilling, are contractors licensed by and doing business in the State of Arizona, holding Class K-53 License number 176890. 2. Complainant, Mr. David Shiflett and Respondent Mr. Brian Clar Vaught, entered into a verbal contract for Respondent to drill a water well on Complainant’s Dragoon, Arizona property. The contract was made on October 28th, 2006, while the two men were on Complainant’s property where the well was to be located. Pursuant to the agreement, Complainant paid Mr. Vaught the full contract price of $9,200.00. 3. Based on Mr. Shiflett’s credible testimony and the prior license record of Respondent, it is found that after contracting to drill the well, and promising that work would commence in a matter of two weeks after the contract was agreed, Respondent abandoned the contract, and to date has kept Complainant’s money. 4. Respondent Mr. Vaught testified that he did not abandon the contract, but Complainant canceled the contract on January 23rd, 2007. Mr. Vaught testified that he deserves to keep at least some of the money for what he testified was a “restocking fee” for the pipe, but conceded that restocking meant, at most, that he put the pipe back on his property. He produced no documented expenses for this. Moreover, Complainant’s credible testimony was that at the time they entered into the contract, they would not choose which variety of pipe ( steel or plastic ( to use until the hole was dug. Complainant also credibly testified that Mr. Vaught assured him at that time that he, Mr. Vaught, has plenty pipe of either variety already on hand. 5. Respondent had originally claimed some offset for what he called a “design fee,” but at the hearing Mr. Vaught agreed to abandon that claim. The permit for the well was obtained by Mr. Vaught, and Complainant agrees to waive the cost of the permit which was issued to him personally. The cost of the permit, paid out of the contract amount, was $150.00. 6. After having promised to begin the well in a couple of weeks, Respondents failed to show up on the job site and begin the work. Respondents became inaccessible to Complainant, and would not return phone calls. When Complainant would eventually reach Respondents they would have excuses for why they had not commenced the work. Finally, On January 9th, 2007, Complainant filed the instant Complaint. Respondent unconvincingly alleges that more than two weeks after the filing the Complaint for abandonment, Complainant canceled the contract on January 23rd, 2007. 7. Notice is taken of Respondents’ prior license record with the Arizona Registrar of Contractors which includes a period of suspension from September 18th, 2006, to December 12th, 2006 (Case No. 06F-S0149). This period includes the time that Respondents contracted with the Complainant for this job. Respondent testified, again not credibly, that he spoke with “Bill” in the Registrar of Contractors’ office, and was informed that his license was reinstated by October 31st, 2006, and that this contract was not entered into until early November, 2006. This hearsay testimony is not only incredible, but cannot outweigh the official Registrar of Contractors records which indicate the suspension occurred as found hereinabove. 8. Based on the abandonment of the contract, and refusal to return Complainant’s money, as well as the prior license record of the subject license, license revocation at this time appears to be deserved.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.1, 7, and 18. 3. The greater weight of evidence proved that Respondent did violate A.R.S. 32-1154.A.1 by abandoning the contract with Complainant. 4. The greater weight of evidence proved that Respondent violated A.R.S. 32-1154.A.18 by negotiating and entering into this contract with Complainant while the subject license was suspended in Case No. S06-0149. 5. Respondent should have created a written contract for the parties to sign in this case pursuant to A.R.S. 32-1158. However, there is no citation for violation of A.R.S. 32-1154.A.13. Other than that there is no violation of A.R.S. 32-1154.A.7 for wrongful or fraudulent conduct by the Respondent independent of the violations already concluded. 6. Complainant seeks both revocation of the license and full restitution in this case. However, A.R.S. 32-1156.01 allows an Administrative Law Judge to recommend restitution only as a condition of continued licensure. The facts of this case and the prior license record warrant an unconditional revocation of the license in order to prevent the Respondents from preying on additional members of the unsuspecting public. Allowing Respondents a chance to keep the license by making restitution would not prevent that. More than making restitution to an individual Complainant, the Registrar’s primary duty is protection of the public at-large. See: Arnold Const. Co., Inc. v. Arizona Bd. of Regents, 109 Ariz. 495, 512 P.2d 1229 (1973). On the other hand, since this is a residential matter, Complainant is free to file a claim for recovery with the Residential Contractors’ Recovery Fund, and, seek restitution in that manner. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class K-53 License number 176890 be revoked on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days from the date of that certification. Done this day, November 13th, 2007.

______________________________________ Grant Winston 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 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488