ALJDEC

99F-M1144-ROC · Registrar of Contractors · 1999-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 1999. APPEARANCES: Kevin Sand, Complainant; Justin Jobe, Respondent’s representative; Dan Menter, listed as a Complainant but a witness; Victor McCleve, witness; Greg Allen, witness; Richard Allred, witness; and Thyrle Stapley, observer. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. Complainant filed the complaint in this matter because Respondent, a licensed contractor, had workers install an underground water system through Complainant’s yard in order to provide water to some homes he was building nearby. Complainant lives in a homeowner’s association. Prior to purchasing his lot, Complainant had complained to the sellers that an easement existed in his property description. In response to the complaint, someone, perhaps the association, rewrote the description and excluded the easement. The easement was for ingress and egress and for public utilities. When Respondent installed the water system, Complainant complained that he had trespassed and installed the system with no right to do so. 4. Respondent argued that a public utility easement currently exists there and cannot be removed without a written release by all the public utilities which might have use of it. A town engineer for the town of Gilbert testified that Gilbert will not release a public utility easement without such releases. Complainant did not dispute that no such releases had been received when his property description was rewritten. Though Complainant’s address is in Chandler, the town of Gilbert is responsible to maintain the water system after one year has passed from issuance by Gilbert of a letter of acceptance. The Gilbert engineer also testified that he had issued a permit to install the water system based on a Public Utility Easement map which showed that the easement existed there. 5. Complainant complained of other issues at hearing regarding the length of time which Respondent was on his property (approximately two weeks longer than expected) and whether Respondent had returned his land to its previous condition (offering no evidence on this). However, Complainant agreed that the only issue with which he was truly concerned was whether Respondent had the right to enter his property and install the water system. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32- 1154(A)(3), (7) and (16) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. Complainant has offered insufficient evidence to establish that Respondent has violated the rule requiring that workmanship standards be met. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. Complainant argues that Respondent entered his land and installed a water system without his permission. Complainant also admits that a public utility easement existed prior to his purchase of the land; however, he was under the impression that he had gotten it removed through the rewriting of the description of his land. 5. Case law in Arizona has established that a conveyance of land which was the subject of eminent domain (such as a public utility easement) carries with it that encumbrance so long as it continues to be used for public purposes. City of Phoenix v. Phoenix Civic Auditorium & Convention Center Association, Inc., 408 P.2d 818, 99 Ariz. 270 (1965). Further, a Town of Gilbert engineer has testified that a public utility easement is not released by the town until all public utilities which might make use of it have signed a release. Therefore, Complainant has failed to establish any violation of A.R.S. §32-1154(A)(7) by Respondent. 6. The Arizona Revised Statutes at §32-1154(A)(16) provides that a licensed contractor may be disciplined for false, misleading or deceptive advertising. Complainant has failed to establish that Respondent is responsible for any violation of this statute as well. RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that this Complaint be dismissed in its entirety with no disciplinary action being taken against Respondent.

Done this day, October 28, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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