ALJDEC decisions subject to certification as final

08F-T0924-ROC · Registrar of Contractors · 2009-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 2nd, 2009; 9:00 a.m. APPEARANCES: Complainant, Mr. Odis Fouse, represented himself. Respondent, H 2 R Construction, Inc., was represented by Mr. Douglas Harrah, President. 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, H 2 R Construction, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 194538. 2. Respondent develops property in Arizona City, Arizona, and in 2006 had there purchased and developed a piece of residential property. Respondent sold the house to a realty company which intended to resell it at a profit. 3. The realty company, believing the resale value would be increased if a fence were built around the rear yard, contacted Respondent to do this. Respondent subcontracted the building of the fence to Meza Construction. 4. Respondent’s President, Mr. Douglas Harrah, chose the location of the fence based on his misunderstanding of the setback requirements of the local building authorities relative to the alleyway that abuts the rear yard. Mr. Harrah incorrectly understood that the fence must be set back eight feet farther from the alley than it actually needed to be, or was unsure of that requirement, and just to err on the side of caution did in fact have the fence built an additional eight feet away from the alley than the local building authorities required. Of course, in placing the fence where Mr. Harrah chose, a significant portion of the lot was separated from the main portion of the house and lot. 5. Complainant then sought to purchase the house and lot from the realty company. In discussions relative to the purchase, Complainant indicated he would need a gate built into the fence to accommodate a recreational vehicle. Mr. Harrah was consulted on this. During discussions with Complainant Mr. Harrah repeated his honest but incorrect understanding that the fence was placed where it was due to the existing setback requirements. Complainant accepted the location and purchased the home from the realty company with the fence. 6. Only later did the Complainant discover that the fence could have been built eight feet closer to the alleyway, which would have significantly increased the practical use of his rear yard. Complainant hired a contractor to demolish the fence built by Respondent’s subcontractor and build a new fence closer to the alleyway. 7. The purchase contract between Complainant and the realty company contains agreements for the resolution of disputes between Complainant and the seller. There is no evidence that Complainant chose to seek remedies against the seller. 8. Complainant filed the instant Complaint against the Respondent seeking reimbursement from Respondent for he cost of his replacement fence. 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.7. 3. There is no substantial evidence that Respondent performed any wrongful or fraudulent act in this case that resulted in the Complainant being substantially injured. Respondent was contracted by the owner of the property to build a fence on the lot, which Respondent did. The owner was entirely satisfied with the location and workmanship of the fence as placed and constructed by the Respondent. Subsequently the Complainant purchased the home from the realty company after having seen the fence. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T08-0924 be dismissed 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, February 4th, 2009.

______________________________________ Grant Winston Administrative Law Judge

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

Armando Contreras, Director Registrar of Contractors 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, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com