ALJDEC decisions subject to certification as final

07F-S0265-ROC · Registrar of Contractors · 2008-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2008, at 1:30 p.m. APPEARANCES: The Complainants appeared through Joseph Neuberg. The Respondent appeared on his own behalf. 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 C-41 License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into an oral agreement wherein the Respondent agreed to perform a site investigation and soil evaluation for the Complainants’ property. 3. On or about June 12, 2007, the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 4. The Complainants Complaint provides, in pertinent part, as follows: “Mr. Barton was contracted on January 15, 2007 to perform a perc test and soil evaluation to determine the type of system applicable for our property. He did perform the test, but has to date not provided the proper paperwork and forms as required by Pima Department of Environmental Quality and the Arizona Department of Environmental Quality, under A.A.C. 18-0-A310. The purpose of the site investigation is specified in R18-9- A310 (B) (1) and (2) and is required to be submitted with an application pursuant to R18-9-A309 (B) (1). It is the foundation for the design of an on-site wastewater treatment facility that complies with State of Arizona aquifer protection requirements…After waiting two months from “hiring” Mr. Barton, we received a bill from Mr. Barton for $1,400.00, $500 of which was for an engineer, which we paid immediately on March 5th. About a week later we received a phone call from Mr. Barton saying the property had failed the percolation test and approximately two weeks later a form arrived in the mail stating that the property failed the percolation test…Our second phone call a week later (March 25th) requesting these documents resulting in the same argumentative answers…We believe that Mr. Barton has operated illegally. We know that there was no notice to dig filed with Pima County because they have no record of anything being done at our address… He took our money and did not deliver the requested information necessary to obtain a legal system. We cannot proceed with installation of any type of system until we have the proper information.” 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted a review of the Complaint and gave the Respondent written notice of the Complaint. 6. On July 19, 2007, the Complainants filed a written request for an administrative hearing stating in part: “there has been no response by the contractor…to rectify or resolve any of the items listed in our complaint.” 7. Credible testimony and evidence, presented at hearing, established the Respondent failed to utilize a written Contract for the construction work at issue; despite the fact, that he knew that the construction project would substantially exceed the sum of $750.00. 8. Credible testimony and evidence, presented at hearing, established the parties were in sharp disagreement as to the terms of their oral agreement. 9. Credible testimony and evidence established the Respondent falsely represented that he had paid an engineer $500.00; when in fact, the stated engineer had not performed any work and had not been paid anything by the Respondent. 10. Credible testimony and evidence established the Respondent failed to inform the county of his intent to dig percolation pits; consequently, there was no county inspection of the Respondent’s percolation test. 11. Credible testimony and evidence established the Respondent failed to comply with applicable county code requirements. 12. Credible testimony and evidence established the Respondent failed to comply with applicable rules and regulations of the Arizona Department of Environmental Quality. 13. Credible testimony and evidence established the Respondent failed to perform his construction work in a professional and workmanlike manner and the Complainants received no value for the $1,400.00 that they paid the Respondent. 14. The Respondent’s actions, in failing to utilize a written Contract, in misrepresenting that he had paid $500.00 to an engineer, in failing to comply with applicable county code requirements, and in failing to comply with the rules and regulations of the Arizona Department of Environmental Quality, are found to constitute a wrongful act. 15. 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) (2) (Departure from or disregard of plans or specifications or any building codes of the state or county political subdivision), (7) (Wrongful Act) and (13) (Failure in any material respect to comply with the provisions of this chapter). 2. A.R.S. § 32-1158 provides, in pertinent part, as follows: “A. From and after December 31, 1992, any contract in an amount of more than seven hundred fifty dollars and less than one hundred fifty thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at the least…” 3. A.R.S. §32-1156.01 provides, in pertinent part, as follows: “After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class C-41 License shall be revoked unless the Registrar of Contractors receives proof that the Respondent has, as restitution, paid the Complainants the sum of $1,400.00 representing the money that the Complainants have paid the Respondent. It is further recommended that if the Respondent properly pays the sum of $1,400.00 to the Complainants, on or before the effective date of this Order, then the above provided License revocation shall not take place. Instead, the Respondent’s Class C-41 license shall be placed on active suspension for a period of twenty (20) 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, May 5, 2008.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 www.azoah.com