ALJDEC

98F-M0427-ROC · Registrar of Contractors · 1998-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 1998 APPEARANCES: Bud and Kathy Yancer, Complainants, appeared in their own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT In early August, 1997, the parties entered a contract whereby the Respondent would build a fence around the Complainant’s property in Maricopa, Arizona. The fence was to consist of three strands of non barb wire. The dimensions were to be 625 feet on two sides and 571 feet on the other two sides (including a gate on one of the sides). Cost was $3,299.40 The Complainants paid $1,649.70 (50%), to the Respondent on August 5, 1997. The Respondent negotiated the check. In early September, 1997, the Respondent put up the corner posts for the fence. Each of the four corners consists of three galvanized pipes embedded in approximately 15 inches of concrete. The fence was to be strung using T- posts every 12 to 15 feet. The Complainant’s land which is approximately 10 acres is bordered by dirt roads on two sides. These roads are below the level of the adjacent land and become channels for water after a rain. When it does rain, the water cuts away the corner of the Complainant’s land where the roads intersect. Shortly after the installation of the corner posts, a heavy rain washed out the corner where the roads intersect. One post had been knocked down and two posts and the concrete they had been set in, were washed away. The other three corners were not affected. The Complainants and Respondent agreed to wait until the Complainants contacted the county to find out what could be done about the damage that the roads and the grading were causing to their property. The county did not respond to the Complainants’ requests about how the problem could be addressed. The Complainants then decided to only fence two sides of the property which were adjacent to another property owner and not the roads. The Respondent stated he would do this but failed to do the work. Numerous calls and messages to the Respondents were not answered. The Complainants offered to accept the materials for the fence for the amount which had already been paid. The Respondent did not answer this request. On November 25, 1997, Inspector Ron Lamp issued a Corrective Work Order (CWO) that the Respondent was to properly complete the contract between the parties. To date, nothing more has been done by the Respondent. CONCLUSIONS OF LAW The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(2), departure from plans or specifications, (A)(3), failure to comply with any rule, specifically A.A.C. R4-9-108 workmanship, (A)(7), wrongful or fraudulent conduct resulting in substantial injury to another, and (A)(23) failure to take appropriate corrective action. The evidence presented by the Complainants was not contested. The above Findings of Fact show a violation of A.R.S. §32-1154(A)(7), a wrongful act with substantial injury (unjustified failure to complete and retention of the Complainants’ funds); and (A)(23), failure to take appropriate corrective action. There is no exculpatory evidence which would mitigate the Respondent’s failure to take any further action with respect to either building at least two sides of the fence or providing the Complainants the materials with which to build the fence for money already paid. The Respondent has failed to answer the Complainants’ inquiries and has not done any work under the contract as required by Lamp’s CWO. There is no violation of A.R.S. §32-1154(A)(2) because there was no showing of any departure from plans, specifications or code. There is no violation of (A)(3) because there was no showing that the post at the corner which was washed away were not properly installed. The water runoff and attendant damage due to the roads cannot be attributed to the Respondent. It is the opinion of this Administrative Law Judge that in view of the limited work actually done by the Respondent, restitution is an appropriate remedy with a nominal amount allowed to the Respondent for the installation of the corner posts. Upon making restitution, the Respondent should be relieved of any further responsibility under the contract RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Class C-14 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has paid restitution to the Complainants in the amount of One Thousand-Four Hundred and Fifty ($1,450.00) Dollars; It is further recommended that upon making restitution as required by the Order entered in this matter, then the aforementioned license suspension shall not take place and that the Citation and Complaint be closed. Done this day, April 13, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

Original transmitted by mail this ____ day of April, 1998, to:

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

By _______________________________

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