ALJDEC decisions subject to certification as final

07F-T0019-ROC-COM · Registrar of Contractors · 2008-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 28th, 2008; 9:00 a.m. APPEARANCES: Complainant, Mr. Kevin Haller, was represented by Mr. Michael S. Woodlock, Attorney-at-Law. Respondent was represented by Mr. Terry P. Esser, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. 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, Ducati Development Group, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-01 License number 154649. 2. The administrative hearing on this matter was a compliance hearing held pursuant to Notice of Hearing issued by the Registrar of Contractors on April 23rd, 2008. The Notice directed that compliance hearing be held to determine whether Respondent has substantially complied with the terms and conditions of the Decision and Order issued on August 1st, 2007, and reconsideration of the appropriateness of any disciplinary penalty imposed or that may be imposed. 3. The August 1st, 2007 Decision and Order from the Registrar directed to be the subject of this hearing ordered Respondent to take two measures: (1) pay the bill to Abracadabra Restoration company in the amount of $13,441.50, and (2) provide Complainant engineer- stamped, county-approved plans for the existing drainage structure and system on Complainant’s lot, or, in the alternative, written verification from Pima County that the structures and system (installed for proper drainage) do not require county approval. 4. The parties stipulated, and Respondent’s Exhibit A further proved, that the Respondent fully complied with item (1) of the Registrar’s order. 5. As to item (2), Respondent contends that it fulfilled the second disjunctive in that requirement by providing written verification from Pima County that the structures and system on Complainant’s lot do not require county approval. 6. Respondent provided the record two letters written and signed by the appropriate county officials attesting that the structures and system installed do not require county approval. See: Respondent’s Exhibit A. 7. One of these letters is from Mr. Eric Shepp, Manager of the Pima County Floodplain Management Division, dated August 9th, 2007, and the other is from Mr. Michael Henrich, Pima County Development Review Senior Hydrologist, dated August 10th, 2007. 8. Both letters state that the drainage system and structures were reviewed and that they conform to county standards, and would not require permitting. 9. Complainant’s wife, Ms. Megan Haller, testified that Respondent did not provide or disclose all the system and structure to the county officials, which means that their conclusions are invalid being based on inadequate information. 10. Ms. Haller testified that the size of the drainage channel is larger and the amount of grading is more than was revealed to the county, and that had the county officials been fully aware of the entire scope of work they would have required a permit. Respondent’s licensed civil engineer, Mr. Christopher B. Rod testified that he together with the county officials reviewed the entire scope of the work for drainage of the Complainant’s lot, making their opinions completely qualified to meet the requirements of the Registrar’s Decision and Order. He denied that the amount of re-grading done exceeded 25% of the total which would have required a permit. 11. Although Complainant provided some credible evidence on the issue of compliance with part two of the Registrar’s Order, the greater weight of credible evidence is that Respondent did comply with that item of the Order.

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. This compliance hearing was held in order to determine whether Respondent had substantially complied with the Registrar’s Order of August 1st, 2007. The greater weight of evidence proved that Respondent had substantially complied with the Registrar’s Decision and Order. 3. It is concluded, based on the substantial compliance by Respondent, that Citation and Complaint T07-0019 should be closed.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that no disciplinary action be taken against Respondent’s subject license in this case, and that Citation and Complaint T07-0019, be closed 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 after the date of that certification. Done this day, May 29th, 2008.

______________________________________ Grant Winston 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 ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488