ALJDEC

99F-1607-ROC-com · Registrar of Contractors · 2000-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: January 26, 2000. APPEARANCES: Complainant appeared personally. Respondent was represented by his attorney, Jeffrey Potter, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The hearing in this matter is to determine whether Respondent complied with the Registrar of Contractor’s prior Order dated August 10, 1999, or if good cause exists for excusing that compliance. 2. The Registrar’s prior Order required Respondent to timely perform the following remedial work in order to avoid the suspension of his contractor’s license:

a) Respondent was found to be responsible for the removal of the installed local boulders used to construct a retaining wall for Complainant’s putting green and the installation of quarry select boulders as provided for in the specifications. b) Respondent was found to be responsible for the removal of the rock border of the putting green and the installation of the brown brick header as specified.

3. Counsel for Respondent wrote a letter dated August 17, 1999, to Complainant acknowledging receipt of the Registrar’s Order and he advised Complainant that Respondent was prepared to comply with the requirements of that Order. Counsel requested that Complainant advise him of the dates available for Respondent to access the property to perform the corrective work. 4. On August 17, 1999, Respondent’s counsel attempted to contact Complainant by telephone. He left a voice mail message on Complainant’s telephone answering system. 5. On August 19, 1999, Complainant advised Respondent’s counsel by telephone that he did not want the brown header installed. Complainant requested an outline of the scope of remedial work to be performed by Respondent and a schedule for completing such work. 6. By letter dated August 25, 1999, Respondent’s counsel advised Complainant that Respondent would be available to complete the required remedial work on Tuesday, Wednesday and Thursday of the following week. Counsel further advised Complainant that the scope of work entailed the removal of the entire rock wall and the replacement of it with quarry select granite boulders as specified in the parties’ written contract. Counsel confirmed that Complainant did not want Respondent to place the brown brick header around the putting green. 7. On August 30, 1999, Complainant telephoned Respondent’s counsel and advised him that Respondent would not be permitted access to his property to perform the remedial repairs. Complainant threatened to initiate a civil lawsuit against Respondent. 8. It is determined that Respondent was prepared to perform the ordered remedial repairs as required by the Registrar’s prior Order but was prevented from doing those repairs due to Complainant’s denial of access to the property. 9. Complainant’s denial of access to the property is found to have been unreasonable and unjustified. 10. The Registrar’s prior Order also required Respondent to an additional surety bond, cash deposit or alternative deposit in an amount of $1,000.00 for a period of 24 months. On or about September 1, 1999, Respondent tendered certified bank check in that amount to the Registrar of Contractors.

CONCLUSIONS OF LAW

1. Complainant had elected to pursue available administrative remedies by initiating these disciplinary proceedings before the Registrar of Contractors with respect to issues relating to the quality and the manner of work performed by Respondent. After a hearing on the merits, the Registrar adopted the Recommended Decision of Administrative Law Judge which required Respondent to perform the above described remedial work and to post an additional bond. Complainant’s denial of access to the property for the performance of the ordered remedial work has effectively precluded Respondent from fully complying with the Registrar’s Order. It must be recognized that a property owner such as Complainant retains the right to grant or deny entry onto his property. Neither this tribunal nor the Registrar of Contractors may order a trespass nor may any contractor commit a trespass onto the owner’s land. 2. In light of Complainant’s denial of access to the property and his acknowledged desire not to have Respondent perform the remedial repairs, Respondent should no longer be bound by the condition that he perform the remedial repairs in order to avoid the suspension of his contractor’s license. 3. The evidence of record supports the closing of the Citation and Complaint in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent be determined to have complied with the Registrar’s prior Order and that the Citation and Complaint in this matter be dismissed. Done this day, January 31, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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