ALJDEC

99F-0525-ROC - audit · Registrar of Contractors · 1999-12-01

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on December 1, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Don Speed, pro se. For Respondent: Clark W. Hawksworth, Qualifying Party.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: In early March, 1999 a water leak was observed in the front yard of Complainant’s home located at 1834 E. Monte Cristo, Phoenix, Arizona. Complainant called Respondent to make repairs to correct the leak or to replace the water pipe, as necessary. Respondent sent a crew to Complainant’s property and it was determined that since the existing water line was old and corroded, the best solution was to replace the pipe from the street water meter to the connection at the house. Respondent completed the work on that same day and presented an invoice to Complainant in the amount of $1,012.00. Upon presentation, Complainant paid this amount in full by a personal check. Subsequent to the completion of the work Complainant determined that a Construction Permit was required from the Development Services Department of the City of Phoenix. Respondent did not take out any such permit at that time. In addition, Complainant learned from a reliable source that the new water pipe is required to be at a depth of 12 inches. The water line installed by Respondent was installed at varying depths from 12 to 9.5 inches. It is a reasonable inference to find that the shallower depth of 9.5 inches could have resulted from soil compaction. To correct such a condition all that would be necessary is to lay additional soil over the trench line. Respondent failed to take out a Construction Permit until August 26, 1999. The Development Services Department of the City of Phoenix did conduct an inspection and determined that since the water line was at a depth of 12 inches at the meter, that was sufficient for compliance with the Uniform Building Code. During the course of installing the water line Respondent found it necessary to remove low branches of a evergreen tree. In doing so Respondent’s crew did not exercise proper care in removing these branches causing the tree to be damaged to an unspecified degree. Complainant testified that he hired a tree service to trim the tree of dead branches that allegedly resulted from Respondent’s work but failed to offer corroborating evidence for that purpose. The testimony of Complainant suggests that he was misled in dealing with Respondent when he was not informed that Frank DeGeorge was no longer the owner of Respondent, that he was charged an excessive amount for the services and work performed, and that Respondent incorrectly was using invoices with the license number of the previous owner. The evidence establishes that Respondent did use an invoice containing the license number of the previous owner and has since corrected that impropriety.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence”). The evidence establishes that Respondent has violated A.R.S. §32-1154 A (2) and (7), as charged in the Citation and Complaint in each respect as set forth below. The evidence fails to establish that Respondent is in violation of A.R.S. §32-1154A (3) or (23), as charged in the Citation and Complaint. By a preponderance of the evidence it is established that Respondent inadvertently disregarded the requirements of the local building code adopted by the City of Phoenix by failing to obtain any requisite permit and, presumptively, by failing to comply with building code specifications applicable to the work to be performed by being certain that the water line was set at a uniform depth of at least 12 inches, all in violation of A.R.S. §32-1154 A (2). However, evidence in mitigation of such violation was evinced in that a permit could not have been taken out prior to the time the work was performed given the emergency nature of the problem. Further, Respondent has not been allowed by Complainant to return to place additional fill material over the trench line to compensate for the natural compaction that occurs with such work. The shortfall of Respondent in this regard is limited to the fact a Construction Permit was not taken out until almost six months after the work had been completed. By a preponderance of the evidence, Complainant has established that Respondent committed a wrongful act by failing to exercise care when trimming the tree branches to minimize damage, and inspecting the water line installation for proper depth installation, all in violation of A.R.S. §32-1154 A (7). An inspection has since been performed by the building officials of the City of Phoenix and been approved, however, this inspection was limited to examining the depth of the water line at the meter. Respondent has not been permitted to return to the property to install additional soil or fill material to compensate for the shallower depths due to Complainant’s misgivings over the amount charged him for the work performed. By a preponderance of the evidence, Complainant has failed to establish that Respondent has not complied with the Corrective Work Order issued by the Registrar of Contractors in violation of A.R.S. §32-1154 A (23) or that Respondent has violated A.R.S. §32-1154A (3) due to not being provided with reasonable access. Complainant’s call to Respondent requesting its services to repair the leaking water line was an offer that was duly accepted. The consideration for this agreement was the promise of Respondent to make necessary repairs and the promise of Complainant to pay the reasonable value therefor. Complainant paid for those services causing a discharge of the contract. To complain after the fact that the value of such services was excessive, in the absence of evidence of fraud, undue influence or duress, is inappropriate. An alleged violation of A.R.S. §32-1154(A)(15) was not charged in the Citation and Complaint. It would be a denial of due process of law to find that Respondent has violated that statutory provision when it used invoices containing the license number of its predecessor because notice of such violation was not properly given under the law. However, had such a violation been charged it is found that the conduct of Respondent in this regard was a mere oversight and corrected immediately. It is concluded therefore that the spirit and intent of the provision of the statute has not been violated by Respondent.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s Class C-37R license be placed on disciplinary probation for a period of seven (7) days.

ENTERED this day, December 1, 1999

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

By ___________________________

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