ALJDEC decisions subject to certification as final

2010A-676443-ROC · Registrar of Contractors · 2010-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Kim Penrod. 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 is the holder of License No.228944-D, a Class K-53 License, issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written agreement for the Respondent to drill a new water well on the Complainant’s property. 3. Credible testimony and evidence established that the parties signed their construction agreement on September 16, 2009. 4. The Respondent then started drilling the water well. The Respondent then experienced difficulty in completing the water well and asked the Complainant to renegotiate the terms of the parties’ written agreement. 5. The Respondent’s written letter of March 24, 2010 provides, in part, as follows: I tried to make things right by continuing on. Mud drilling was required due to a caving swelling clay formation and is extremely slow drilling. At the end of every well I always leave one joint undrilled for a final cleanout before installing the casing. As I was starting the last joint the next morning the pipe stuck a little and I thought it was wall suction. But as I proceeded I realized the weight of the pipe was too light and knew something was wrong so I started tripping out. That’s when I found the drill steel had twisted in half in the middle of a 20 ft. joint. From the part of the drill steel I was able to get out of the hole, the twist created a point at the end left in hole. The twist/point has made it very hard to get hold of. I have tried several fishing methods that I had work in the past but with no luck. I have spent at least two months trying to get the twisted pipe out and not lose 500 feet of drill steel below the twist off, plus the already drilled well. 6. Credible testimony and evidence established that when the Complainant refused to renegotiate the terms of the parties’ construction agreement, the Respondent abandoned the construction project. This resulted in an abundance of assorted drilling equipment and construction debris being left on the Complainant’s property. Complainant was also left with an uncapped water well. 7. Credible testimony and evidence, presented at hearing, established that the well can not be finished unless the blockage in the well can be removed. 8. Credible testimony and evidence established that it is unlikely that the blockage can be successfully removed from the water well and that, accordingly, it is unlikely that the water well can be completed. 9. The Complainant testified that he no longer wants the Respondent to try and finish the water well, and feels that the Respondent has earned the $2,500.00 that the Complainant has paid the Respondent. The Complainant does want the Respondent to remove its drilling equipment and construction debris from the Complainant’s property. 10. .The Respondent’s actions, in stopping work at the construction site and leaving construction equipment and construction debris and leaving an uncapped water well in the Complainant’s property, are found to constitute an abandonment of the construction project. 11. The credible evidence of record is insufficient and fails to support a finding of a violation of the charged provisions of A.R.S. § 32-1154A(9) (Failure to complete for price stated in contract). 12. 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. § 32-1154A(1) (Abandonment).

RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class K-53 License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly removed its construction equipment and construction debris from the Complainant’s property and has properly capped the water well in accordance with the rules and regulations of the Arizona Department of Water Resources. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, 2010.

/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