ALJDEC

00F-A0259-ROC · Registrar of Contractors · 2000-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On October 16, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Pamela Devine (the “Complainant”) appeared on her own behalf. Albert Tiffany appeared on behalf of Trail Contracting, Inc. (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. The Complainant is the owner of a home located at 7150 Knapp Gulch, Prescott, Arizona (the “Home”). Albert Tiffany is the Respondent’s qualifying party. In May of 1999, the parties entered into a verbal contract (the “Contract”) for the Respondent to perform the following: a. Hook up the Home’s water pump to a nearby well using PCV piping; b. Connect the Home’s plumbing to the Home’s septic tank using PCV piping; c. Hook up the Home’s toilet and sink to the water line; and d. Hook up the kitchen sink to the water line.

2. The Complainant testified that she has planned for several years to add running water and a waste water disposal system to the Home. The Complainant testified that she asked around her neighborhood to determine the procedure for installing the running water and waste water disposal system. The Complainant testified that her neighbors informed her that she did not need a permit from Yavapai County (the “County”) because her Home was located on “grandfathered” property.

3. The Complainant testified that she never inquired with the County regarding the need for a permit to add running water and a waste water disposal system to the Home. The Complainant testified that she only confirmed with the County that her Home was located on “grandfathered” property. The Complainant testified that she was on a strict budget so she purchased a septic tank, a water pump and other equipment over a seven year period (when she could afford them).

4. The Complainant testified that she hired the Respondent to complete the Home’s running water and waste water disposal system. The Complainant paid the Respondent $1,392.80 pursuant to the terms of the Contract. The Complainant testified that she relied on the Respondent’s expertise and professionalism. The Complainant admitted that she was a novice when it came to plumbing.

5. The Complainant testified that she was concerned about the quality of her well water. The Complainant testified that Mr. Tiffany told her to send a sample of the well water to Bradshaw Mountain. However, the Complainant testified that she later learned that Bradshaw Mountain only tested for e-coli. The Complainant submitted another sample of well water to Bolin Laboratories. The Complainant testified that the well water had numerous problems. The Complainant testified that she learned of these problems after the Respondent had substantially completed the work at the Home. The Complainant testified that she probably never would have hired the Respondent to complete the running water and waste water disposal system if she had known about the numerous problems with the well water.

6. The Complainant testified that Mr. Tiffany promised that he could resolve the water problem with a water filter. The Complainant testified that she does not believe that there is a water filter on the market that can satisfactorily clean her well water.

7. The Complainant testified that the Respondent failed to finish the hook up for the bathroom sink. The Complainant testified that the Respondent failed to fill a hole beneath the kitchen floor. See Complainant’s Exhibit 1. The Complainant testified that the Respondent failed to properly insulate the installed piping. The Complainant testified that the pipes froze during the winter.

8. The Complainant testified that she did not understand how the valves worked in the plumbing system installed by the Respondent. The Complainant testified that she repeatedly tried to contact the Respondent but he was never available.

9. The Complainant testified that she subsequently learned that her Home was “grandfathered” only for construction, but not for plumbing. The Complainant testified that the County cited her for having a “standard” waste water disposal system. See Complainant’s Exhibit 4. The County informed the Complainant that she could only install an “alternative” waste water disposal system at the Home. Id. The Complainant testified that the County made her remove the PCV piping from the well to her Home. The Complainant testified that the County also made her remove the PCV piping from the Home to the septic tank. The Complainant testified that the copper piping installed in the Home by the Respondent did not have to be removed. The Complainant testified that it is useless without the waste water disposal system. The Complainant testified that she cannot afford an “alternative” waste water disposal system.

10. On or about January 10, 2000, Registrar of Contractors (“ROC”) Inspector Cliff Frandsen scheduled a jobsite inspection at the Home for January 20, 2000. The Complainant, Mr. Tiffany and Inspector Cliff Frandsen met for the jobsite inspection on January 20, 2000. The parties resolved this dispute during the inspection. The Respondent agreed to drain the toilet, cap the line to the septic tank and reimburse $400.00 to the Complainant. See Complainant’s Exhibit 5 (Frandsen letter, dated January 21, 2000). Unfortunately, the Respondent failed to drain the toilet. Accordingly, the Respondent breached the agreement reached between the parties at the January 20, 2000 jobsite inspection.

11. Mr. Tiffany testified that he properly performed pursuant to the agreement reached at the inspection. Mr. Tiffany testified that he marked the valves, he capped the line to the septic system and he reimbursed $400.00 to the Complainant. Mr. Tiffany testified that he was not required to drain the toilet. However, this position is contrary to Inspector Frandsen’s summary of the agreement in his letter, dated January 21, 2000. See Complainant’s Exhibit 5.

12. The Complainant testified that she relied on the expertise of the Respondent to properly complete the waste water disposal system. The Complainant testified that the Respondent should have known that the County would not allow a “standard” waste water disposal system to be installed at the Home. The Complainant testified that she spent $2,177.00 to correct the work performed by the Respondent. See Complainant’s Exhibit 3.

13. The undersigned Administrative Law Judge finds that the Complainant reasonably relied on the Respondent’s expertise to properly complete the waste water disposal system. A licensed contractor is an expert and a professional who has the duty to determine if a waste water disposal system is proper pursuant to the County’s rules, regulations and requirements. The undersigned Administrative Law Judge finds that the Respondent should have known that the County would not permit the installation of a “standard” waste water disposal system at the Home.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108. The Respondent failed to complete the waste water disposal system in a professional and workmanlike manner. The Respondent failed to perform in accordance with County regulations and requirements. The Respondent should have known that the County would not allow a “standard” waste water disposal system at the Home.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(7). The Respondent should have informed the Complainant that the County would not permit a “standard” waste water disposal system at the Home. The Respondent’s failure to inform the Complainant was a wrongful act that caused substantial financial injury to the Complainant.

4. The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class C-37 license pursuant to A.R.S. §32-1154. The undersigned Administrative Law Judge further finds that grounds exist to increase the Respondent’s surety bond or cash deposit pursuant to A.R.S. §32-1154(B).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class C-37 license be suspended until the Registrar receives proof that the Respondent has performed the following:

A. The Respondent shall pay $1,392.80 to the Complainant to reimburse her for the amount that she paid to the Respondent pursuant to their Contract.

It is further recommended that if the Respondent reimburses the aforesaid sum on or before this Order’s effective date, then no license suspension shall be imposed.

The undersigned Administrative Law Judge further recommends that the Respondent’s Class C-37 license shall be placed on disciplinary probation for a period of thirty (30) days commencing on the effective date of this Order (thirty-five days after the date of mailing by the Registrar). The disciplinary probation should be imposed even if the Respondent properly pays the aforesaid sum.

The undersigned Administrative Law Judge further recommends that the Respondent post an additional surety bond, cash deposit or alternative deposit in the amount of $1,000.00 for a period of 24 months. The Respondent must post this additional surety bond, cash alternative or deposit before the Registrar restores the Respondent’s contracting rights. The Respondent shall post this bond or deposit for the sole benefit of persons injured as defined in A.R.S. §32-1131(3) and shall be in addition to the required surety bond, cash deposit or alternative deposit otherwise required for the Respondent’s volume of business. The Registrar shall return the cash deposit or alternative deposit to the Respondent two years following this Order’s effective date only if there are no claims pending against the Respondent’s license.

Done this day, October 30, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Michael P. Goldwater Registrar of Contractors 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