ALJDEC decisions subject to certification as final

08F-2645-ROC · Registrar of Contractors · 2009-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 17, 2009 APPEARANCES: Rhonda Crowner, Complainant; Randy Taylor, Respondent’s representative; Jim Dimond, Registrar of Contractors Inspector; James Rozier, Complainant’s witness; David Frazee, Respondent’s witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint with the Registrar of Contractors, the Complainant established that the Respondent violated the applicable contracting laws and rule by failing to provide a well adequate to meet the need for water in Complainant’s home when all of the homes in the development are occupied. Based upon the evidence and testimony at hearing, it was established that a provisional suspension should be imposed against the Respondent’s license until a new and adequate well is installed. FINDINGS OF FACT 1. The Complainant purchased a home built by the Respondent. The home was part of a development that was built by the Respondent. The homes in the development are all serviced by one well, which was also installed by the Respondent. Since Complainant purchased her home, the well serving the development has had a tendency to run dry in the summers, causing the residents to have to haul water. 2. The Complainant filed a complaint with the Registrar of Contractors, and a Registrar of Contractors Inspector issued a Corrective Work Order regarding the amount of water in the well and another matter, which was settled prior to hearing. Although the Respondent attempted to remedy the amount of water in the well in August 2008, it does not produce more water. The Complainant and the rest of the homeowners had to haul in water again on June 15, 2009. 3. The Respondent objected to the complaint on the grounds that the well had been installed six years ago. Mr. Taylor argued that he has provided the homes with water for six years and there should be an end to his responsibility. He said there was sufficient water when he built the homes, so he told the driller to stop drilling. He did not know at that time that the well would not support the homes in the development. 4. The Respondent’s witnesses testified that, as another homeowner in the development, he has noted that the well has never produced enough water when all of the homes were occupied. 5. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards. 6. According to the records of the Registrar of Contractors, the license in this matter has 3 open and 0 closed complaints against it. It was suspended for non-renewal from April 1 to 12, 2002 and April 1, to May 27, 2004. It was suspended for lack of bond from February 8 to March 23, 2005. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7), and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 7. In this case, the Complainants have established that Respondent violated A.R.S. § 32-1154(A) (3), (7), and (23) by not providing a well with enough water to serve the number of homes in the subdivision. Although the Respondent may have believed that the well would be adequate at the time of building, it has not yielded enough water to serve the Complainant’s home. Lack of water renders the home unfit for its intended purpose. Respondent had the duty, as the licensed contractor, to assure that any construction work performed by his company was fit for its intended purpose. Failure to do so constituted a wrongful act and a failure to meet minimum workmanship standards. Additionally, Respondent did not establish any basis for finding that his action taken in response to the Corrective Work Order, though made in good faith, was the appropriate action since it did not result in curing the water deficiency. 8. The witness called by the Respondent was an expert in the matter of well-drilling. He testified that the only way to provide adequate water to the development at this point is to drill a new well. His testimony was uncontroverted at hearing. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Order in this matter, Respondent’s Class B- license shall be actively suspended until the Registrar receives and accepts sufficient proof that Respondent has drilled a new and adequate well for the Complainant’s development so that, between the new well and the existing well, the homes have a water supply that is constant throughout the year and adequate to meet the needs of the Complainant’s home when all of the homes in the development are occupied. Once the Registrar of Contractors receives proof that the well has been provided, Respondent’s suspension shall be lifted and Case No. 08F- 2645-ROC shall be closed. No lingering penalties shall be imposed. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.

Done this day, July 6, 2009 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

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

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826