ALJDEC

00F-0919-ROC · Registrar of Contractors · 2000-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 24, 2000 APPEARANCES: The Complainants, Kevin and Patricia Gratton, appeared personally. The Respondent was represented by Peter Rambo, its sales manager. 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. Respondent is the holder of License No. 097214, a Class C-37R license, issued by the Registrar of Contractors. 2. On or about January 30, 1999, Respondent installed a water softening and reverse osmosis system in the Complainants’ newly constructed residence. That system was installed in Complainants’ home prior to them occupying it. 3. On or about August 9, 1999, Complainants contacted Respondent requesting service for the installed system. A service call was scheduled for August 11, 1999. 4. During the August 11, 1999, service call, Respondent’s assigned employee tested the installed water system. The test results revealed the presence of hard water, which indicated that the system was not operating properly. The Complainants were upset and showed Respondent’s employee the faucets and fixtures they claimed were damaged due to the failure of the Respondent’s water system. 5. On August 16, 1999, Respondent’s assigned employee returned to Complainants’ residence. The employee determined that the system was supplying intermittent soft and hard water. 6. On August 24, 1999, Respondent dispatched a third technician on a service call to repair Complainants’ water system. That technician removed the existing system and replaced it with a new system. 7. On September 1, 1999, Complainants’ tested their water supply and found that the water was hard. They then contacted their builder, Shea Homes, to report the problems they experienced with the water system. Complainants were advised by the builder’s representative to file a complaint against Respondent with the Registrar of Contractors. 8. On September 2, 1999, Respondent’s employee, Chris Russo, confirmed that Complainants’ water supply was hard. He took the salt tank apart and replaced a float. 9. On September 3, 1999, Respondent’s employee replaced the head unit in Complainants’ salt tank. 10. On September 16, 1999, Complainants once again checked their water system. They discovered that the system had used 50 pounds of salt in one week. Respondent’s technician made a service call and replaced a float that he had broken. 11. There is credible evidence that the Complainants’ water system is now operating properly. 12. Complainants did file a complaint against Respondent with the Registrar of Contractors. As a result of that complaint, the Registrar’s assigned inspector performed a jobsite inspection at Complainants’ residence. That inspection resulted in the inspector issuing a Corrective Work Order dated November 30, 1999. The inspector determined that the water softener and reverse osmosis system installed by Respondent did not function properly and caused damage to the following items in Complainants’ home:

a) Crust build up in the bathroom faucet aerators. b) Crust build up in the shower heads. c) Crust build up in the kitchen faucet aerators. d) Discoloration in the vanity bowel drain fittings. e) Discoloration and pitting in the master bathroom faucets. f) Pitting in the upstairs bathroom faucets. g) Pitting in the downstairs bathroom faucets.

The written directive required Respondent to determine the cause of the malfunctioning system and to correct the condition. 13. The failure of Respondent’s water softener and reverse osmosis system was the direct and proximate cause of the damage to Complainants’ fixtures described in Finding No. 12 above. Respondent is found to be responsible for the damage to those fixtures. 14. It is determined that Complainants’ attempted to mitigate the damages caused by the failure of Respondent’s water system to operate properly by contacting Respondent when they discovered that the system was not producing soft water. 15. Respondent is found to have complied with the Registrar’s written directive to make the required repairs necessary for the water system to operate properly. However, Respondent is deemed to have failed to comply with the corrective work order directive to correct the damage to the above-described fixtures caused by Respondent’s defective water system. It is determined that Respondent, in good faith, disputed its responsibility to repair those damaged fixtures. 16. Respondent is responsible for the damage to Complainants’ fixtures described above due to the failure of its water softener and reverse osmosis system to operate properly. 17. Respondent did not provide prompt service when requested by Complainants to repair the water system. 18. Respondent’s above-described actions are deemed to be wrongful acts which have substantially injured Complainants.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over the Respondent and the subject matter in this action. 2. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), (23) and (3); namely Rule R4-9- 108. 3. The Registrar of Contractors has the authority, pursuant to A.R.S. § 32- 1154(B), to impose conditions on a contractor’s license for proven violations of A.R.S. § 32-1154(A). The Registrar may also impose a civil penalty on a licensee, pursuant to A.R.S. § 32-1154(D), for each violation of A.R.S. § 32-1154(A)(23). Under all the circumstances, a reasonable condition to be placed on Respondent’s license would be to require it to replace Complainants’ damaged fixtures described in Finding No. 12 caused by its deficient water softener and reverse osmosis system and not to impose any civil penalty against Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class C-37R license be suspended until the Registrar of Contractors receives written proof that Respondent has delivered to Complainants suitable replacement fixtures for the damaged items described in Finding No. 12 above. Respondent is not responsible for the removal of the damaged fixtures or the installation of the replacement fixtures. It is further recommended that if Respondent properly delivers the above-provided suitable replacement fixtures on or before the effective date of the entered Order in this matter, then the license suspension shall not take place and the Citation and Complaint shall be closed.

Done this day, May 22, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater, Director 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