ALJDEC

97F-A0127-ROC · Registrar of Contractors · 1997-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 1997. APPEARANCES: J. Jeffrey Coughlin appeared representing Robert Dowell, Complainant. No authorized representative appeared on behalf of Mortimer Inc., Respondent and holder of Class C-21 license no. 093591, doing business as Mortimer’s Custom Landscaping.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter, a rehearing, was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Robert Dowell, Complainant, resides at 655 Filaree Drive, Prescott, Arizona. 2. Mortimer Inc., Respondent, is holder of a Class C-21 license, no. 093591, and does business as Mortimer’s Custom Landscaping.[1] 3. In September 1996, Respondent contracted with Complainant’s neighbor, Lois Hopper, to perform landscaping services and to construct a water drainage system directing storm run off from her property. The instant matter arises out of Mr. Dowell’s Complaint that Respondent’s drainage system now directs storm run off to pass through his property causing him damages. 4. The preponderance of the evidence demonstrates that Respondent’s drainage system it constructed on Mrs. Hopper’s property does indeed direct storm run off to pass directly across Mr. Dowell’s driveway entrance, causing erosion, washing, and ponding. 5. The evidence also demonstrates that Respondent installed the drainage system without approval or inspection from either the local building authority or the Yavapai Hills Home Owners Association. 6. The evidence demonstrates further that the consequences of Respondent’s construction are a partial result of Respondent’s failure to either install appropriate catch basins and/or appropriately tie its drainage system into the existing city drainage system. At any rate, efforts to remedy the situation will require compliance with local building codes and approval of the Yavapai Hills Home Owners Association.

APPLICABLE LAW A.R.S. §32-1154(A) provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect . . . without consent of the owner . . . . 3. Violation of any rule adopted by the Registrar.[2] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged material departure from or disregard of plans or specifications or any building codes without consent of the owner, Complainant sustains his burden of demonstrating violations; that is, Complainant demonstrates sufficient evidence that Respondent violated §32-1154(A)(2). 4. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainant again sustains his burden of demonstrating violations; that is, Complainant demonstrates sufficient evidence that Respondent violated §§32-1154(A)(7) and (3), namely A.A.C. R4- 9-108.

RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing twenty (20) days after the effective date of the final order in this matter, that Mortimer Inc.’s Class C-21 license, no. 093591, be suspended. It is further recommended that Respondent have an opportunity to avoid suspension of its license. If Respondent corrects the deficiencies noted in paragraphs 4, 5, and 6 of the Findings of Fact above, in accordance with the requirements of the local building authority and the Yavapai Hills Home Owners Association, on or before the expiration of twenty (20) days after the final order’s effective date, then no license suspension shall take place and the instant Citation and Complaint shall be closed. Done this day, October 20, 1997.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] It is worth noting again that Respondent failed to have an authorized representative appear at the hearing on its behalf. Although Respondent sent an employee of the company to appear, Lee Morris, Mr. Morris is not a duly authorized representative of the company. However, Mr. Morris’ attendance at the hearing confirms that Respondent had proper notice of the hearing. [2] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826