ALJDEC

00F-G0523-ROC · Registrar of Contractors · 2000-07-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29 and June 30, 2000. APPEARANCES: Ms. Dorothy Kenson represented herself. Mr. Ray Carnes represented himself. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ This matter involves two complaints which were earlier consolidated for purposes of this hearing. The issues center on Respondent’s alleged violations of A.R.S. 32-1154(A)(3) (violation of any rule adopted by the Registrar, namely, A.A.C. R4-9-108 (poor workmanship)), A.R.S. 32- 1154(A)(7) (committing a wrongful or fraudulent act which results in substantial injury to another person), A.R.S. 32-1154(13) (failure to comply in any material respect with any provision of this chapter), and A.R.S.§32-1154(A)(23). Complainant has proven by a preponderance of the evidence that Respondent failed to comport with A.R.S. §32-1154(3) and A.R.S. §32-1154(23). FINDINGS OF FACT 1. On September 1, 1999, Complainant and Respondent entered into a contract for Respondent to install a new sprinkler system in the front and back yard of Complainant’s home. Complainant paid respondent $1,156.00 to complete the work. 2. Complainant observed several facets of the work which she believed were improper. Complainant attempted to resolve these difficulties with the Respondent on her own but apparently was unable to do so. On December 6, 1999, Complainant filed a complaint with the Registrar of Contractors alleging the following difficulties: A. Respondent had failed to provide Complainant with a copy of a written contract memorializing the terms of their oral agreement and failed to provide warranty information on the system as promised; B. There were leaks in both the front and backyard valves; C. Respondent failed to replace the “front valve shutoff” from the original sprinkler system; D. Respondent did not properly install the low voltage wiring; E. The trenches for the new sprinkler system were not properly backfilled; F. The sprinkler timer was not properly secured. 3. Complainant subsequently filed an additional complaint relating to the work originally completed by Respondent as well as some additional repairs that had been undertaken by respondent in his efforts to correct some of the problems with the new sprinkler system. 4. Mr. Lewis King, an inspector with the Registrar of Contractors, was assigned to investigate both the original complaint as well as the new complaint. On March 13, 2000, Mr. King conducted a job site inspection with both Complainant and Respondent in attendance. Mr. King found the following problems with Respondent’s work: A. The front and rear sprinkler heads were not properly installed. Some were installed too low, others were too high. B. Dirt that was removed to replace two valves on the side yard was mixed in with rock C. All sprinkler lines in the front and back yard were sunken due to the fact that they were not properly backfilled D. The low voltage to the sprinkler timer was not properly installed. The wires were cut short and run at an angle and were not properly attached to the house. E. An interior timer was installed on the exterior of the house where it would be exposed to the elements. 5. As a result of the inspection, the Registrar issued an order to Respondent to correct the items noted above in Paragraph 4. The corrective work order issued on March 22, 2000. 6. Respondent made some efforts to comply with the corrective work order. For example, he installed a weather-proof box over the interior timer which would otherwise have made the installation compatible with the workmanship standards required by the Registrar. Respondent also filled in the hole created when the backyard valve was replaced. Respondent refused to correct the problem with the trenching, asserting that the trenches were properly back-filled and that the problem was caused when Complainant’s gardener removed dirt from the recently filled trenches to use in filling in a valve. The undersigned resolves this conflict in the evidence by finding that in fact the trenches were not properly back-filled by Respondent. 7. Mr. King completed a pre-hearing inspection on June 28, 2000 to see if the repairs outlined in the corrective work order had been made. At that time, he found that the weather proof box had been installed around the timer and the dirt around the valve had been filled in. The integrity of the box was compromised, however, by virtue of the fact that in installing the box, a hole had been drilled in the bottom to permit wires to pass through. The hole had not been sealed and this could allow moisture to get into the box and affect the timer. Respondent had also attempted to partially correct the low voltage wires by splicing in a longer section of wiring. The splice itself is merely wrapped with electrical tape and, according to Mr. King, the splicing and the manner in which it was completed does not amount to a professional and workmanlike job. As to the other problems noted in the corrective work order, Mr. King noted that none of them had been corrected properly. 8. Because of the problems noted in the corrective work order, in Mr. King’s opinion, based on his training and experience as a general contractor, the installation was not completed in a professional and workmanlike manner. His testimony was disputed at the hearing. The undersigned finds Mr. King’s testimony to be credible and based on sufficient expertise to be reliable. It is also supported by the photographic evidence of the job site which was admitted at the hearing in this matter. 9. The undersigned has reviewed and considered Respondent’s two year complaint in fashioning the recommended disposition of this case. CONCLUSIONS OF LAW 1. 1. A.R.S. §32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (13). Failure in any material respect to comply with the provisions of this chapter. * * * (23). Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.

AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 2. 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). 3. The evidence establishes that Respondent violated A.A.C. R4-9-108 as demonstrated in findings of fact paragraphs 4 and 8 above. Findings of fact paragraph 7 above demonstrates that Respondent failed to comply without justification with the corrective work order dated March 22, 2000. 4. The evidence fails to establish that Respondent violated either A.R.S. § 32-1154 (A)(7) or A.R.S. § 32-1154(A)(13). RECOMMENDED DECISION Based on the foregoing, the undersigned recommends to the Director that Respondent’s Class C-21R license number 087751be suspended until such time as written proof is provided to the Director that Respondent has completed the following repairs in a professional and workmanlike manner: 1. Respondent shall correct the problem with the sprinkler heads being either too high or too low; 2. Respondent shall ensure that the hole drilled into the timer covering is properly sealed; 3. Respondent shall determine the cause and correct the condition of the sunken trenches in the front and backyard; 4. Respondent shall correct the condition of the low voltage timer wiring being improperly spliced and not properly anchored to the wall; 5. Respondent shall supply the Complainant with a copy or the manufacturer’s warranty on the sprinkler parts. In the event that written proof of the above is received on or before the effective date of the Director’s order in this matter, then it is recommended that no license suspension take place and that this case be closed. Done this day, July 7, 2000.

______________________________________ Gregory L. Hanchett 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