ALJDEC decisions subject to certification as final

2010A-308476786-ROC · Registrar of Contractors · 2011-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared Daniel Oldfield. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class C-53 (No. 184092) expired on June 10, 2010. 2. This is a residential matter where the parties entered into a barter type of agreement wherein the Respondent was allowed to perform work on his drilling rig at the Complainants’ shop in exchange for the Respondent’s labor for drilling two water wells on the Complainants’ property. 3. There was no dispute that the Respondent utilized the Complainants’ shop for approximately seven months and then began drilling the two water wells. 4. There was no dispute that the Complainants paid for the all of the equipment utilized in the drilling of the two water wells, including the purchase of new pumps. 5. Undisputed credible testimony and evidence established that the two water wells were constructed in a haphazard and unworkmanlike manner with both wells being crooked and unable to function properly. 6. The Complainants were dissatisfied with the Respondent’s workmanship and demanded that the Respondent properly correct his work and complete the two water wells or promptly return their equipment costs to them and pay them for the use of their shop for seven months. 7. When the Respondent failed to comply with the Complainants’ demand, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on November 9, 2010, issued a written Corrective Work Order directing the Respondent to properly resolve the Complainants’ complaint. 9. The Corrective Work Order provides, in pertinent part, as follows: .License #184092 issued to A Drilling Company has expired on 06/10/10 and cannot do nor sub-contract the recommended corrective work listed in this directive. The only available remedy under this license status, if appropriate, would be financial settlement.

Contractor to correct the following by appropriate means: 2. Did not install proper casing: Correct size casing needs to be installed. 3. Did not provide correct pumps: Correct pumps need to be provided. 4. Did not finish wells so they are operable: project needs to be completed and wells made operable. 5. Did not provide well permits: Need to provide well permits.

No action is required on the following: 1. Clean up driller’s mud left at drilling sites, mud contaminated garden: Corrected by the complainants.

10. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 11. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project without legal excuse leaving the Complainants with two unfinished water wells. 12. Undisputed credible testimony and evidence established that the Respondent departed from or disregarded plans, specifications and applicable code requirements in his construction work on the two water wells at issue. 13. Undisputed credible testimony and evidence established that the Respondent’s construction work on the two water wells failed to comply with applicable workmanship and industry standards. 14. Undisputed testimony and evidence established that the parties’ written construction agreement failed to contain the minimum elements of a contact as per A.R.S. § 32-1158. 15. There was no dispute that the Complainants have now paid $16,000.00 to an alternative well driller to construct a new water well for their property. 16. The Complainants’ actions, in causing an alternative licensed contractor to construct a new water well for their property after the Respondent failed to comply with the terms of the Corrective Work Order, were shown to be reasonable and justified under the circumstances. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (1) (abandonment), A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specification or any building codes), A.R.S. § 32- 1154 (A) (13), namely A.R.S. § 32-1158 (minimum elements of a contract), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of this Order of Revocation. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. 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, August 26, 2011. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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