ALJDEC

01F-0520-ROC · Registrar of Contractors · 2001-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 2001. APPEARANCES: Ruth and Daniel Phillips, Complainants; Ray Carnes, Respondent; Jo Carnes, Respondent’s spouse; and Joe Cotten, Registrar of Contractors Building Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainant has established that Respondent did not meet minimum workmanship standards on some items in the installation of Complainants’ sprinkler system. Respondent failed to correctly complete correction of some of the items. Therefore, it is appropriate to discipline Respondent’s license accordingly. I recommend the imposition of a provisional suspension combined with an increase in Respondent’s bond. FINDINGS OF FACT 1. On May 26, 2000, Ruth and Daniel Phillips contracted with Ray Carnes for the installation of automatic sprinklers in their front and back yards. On August 16, 2000, the Phillips’ filed a complaint against Ray Carnes stating that they are not getting proper coverage, some of the sprinkler heads were too high and some too low, one did not retract and some trenches were not covered level. They also complained about the placement of some of the sprinkler lines. 2. On August 31, 2000, Joe Cotten, a Registrar of Contractors Inspector, conducted the first job site inspection. The homeowners were present but Mr. Carnes was unable to attend due to illness. While at the inspection, Mr. Cotten looked at the complaint items as well as other problems with the installation. Generally, when new items arise at inspection, the Inspector will ask the contractor if he objects to including the new item; however, since Mr. Carnes was not present, Mr. Cotten could not ask about the new items and simply addressed them as well. 3. On August 31, 2000, Mr. Cotten issued a Corrective Work Order with eleven items on it. He did not address the problem with the trenches. He did find there to be sufficient coverage. He found that Respondent did not have a permit and ordered him to obtain the proper permit and get inspections done. Respondent did pull a permit but a red tag remains on one item noted herein. 4. The Corrective Work Order found that some bubbler lines weren’t buried. He testified that the standard in the industry is to bury them or paint them when they cannot be buried. These lines weren’t painted either, but Cotten found they could have been buried, so they should have been. Mr. Carnes did not correct this item. 5. The Corrective Work Order found that a rose planter did not have a bubbler installed. Respondent argued that this was not agreed to in the contract. Complainants acknowledged that bubblers in the planters was an extra item and did not complain that the rose planter did not have a bubbler. This should not be considered an issue. 6. The Corrective Work Order found that a hose bib should be raised. Mr. Carnes raised it, but the City of Glendale issued a red tag on it because it was PVC pipe that was not sufficiently supported, not painted and did not have an anti-backwash. Respondent objected that this was not on the original complaint. He also stated that he did not know there was a red tag on it. He argued that a green tag had been issued earlier on the job. 7. Mr. Cotten could verify that one of the sprinkler heads failed to retract. At the pre-hearing inspection, though, they all retracted when tested. 8. He verified that two or more of the sprinkler heads did not sit flush to the ground. Mr. Carnes did not correct this item. Mr. Phillips had to mound some dirt around one of the heads to protect it from further damage. Although Mr. Carnes objected to this, the action was appropriate to ameliorate further damage to the hardware. 9. The Corrective Work Order did mention that some sprinklers needed adjustment to get full coverage, but Mr. Cotten testified that they would only be corrected after the other work was done. Since Mr. Carnes had not completed the other work, it was not expected that this would be done yet. 10. The Corrective Work Order found that the low voltage connections are to be waterproof. Mr. Carnes did install waterproof covers on them. Mr. Cotten found at a pre-hearing inspection that they were not all closed but a photograph entered into evidence did not show this. 11. The Corrective Work Order found that the line to the front planter should have been installed by inserting the pipe at the bottom of the planter rather than running it outside the planter and over the top. Mr. Carnes testified that he asked the homeowners whether the cement pad for the house extended to the planter and they didn’t know so he ran the line outside the planter because drilling through the pad is not appropriate. The Phillips testified that they were not asked about that because they would have said the pad does not go under the planter because they installed the planter themselves. Mr. Cotten testified that the pad would not normally go under the planter and it appeared to him that the proper installation was possible. 12. Mr. Carnes testified that he attempted to complete the work on the Corrective Work Order but that Mr. Phillips chased him off the property with an ax. After observing the demeanor of the parties, the Administrative Law Judge concluded that it is more likely that Mr. Phillips did not threaten Mr. Carnes and, just as he testified, only asked him to leave after Mr. Carnes started a fight with him and began swearing at him. 13. The Phillips offered photographs of the yards showing the various problems. While they did show a dearth of grass over the yard, they did not establish that the overall coverage plan was inadequate. Mr. Cotten’s expert testimony and his comprehensive investigation of the coverage plan must outweigh the evidence of the pictures because of the many other reasons that would affect the growth of the grass such as insufficient watering, lack of seed or the dormancy of the seed. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) 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 (23) 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 provides that contractors working under their license must meet minimum workmanship standards. A.A.C. R4-9- 108. 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”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). This standard “allows both parties to ‘share the risk of error in roughly equal fashion’… Any other standard expresses a preference for one side’s interests.” Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 74 L.Ed.2d 548, 103 S. Ct. 683 (1983) quoting Addington v. Texas, 441 U.S. 418, 423, 60 L.Ed.2d 323, S. Ct. 1804 (1979). 7. In this case, the Complainant has not established that there was insufficient coverage provided in the sprinkler plan. Respondent has done some work on the Corrective Work Order but has not completed it all. He has not established valid justification for failing to correct the work. 8. The basic ground for potential discipline to Respondent’s license is workmanship and the failure to correct it properly. There is no basis for finding a separate “wrongful act” by Respondent in this case. 9. Complainants have established that Respondent violated A.R.S. §32- 1154(A)(3) and (23). Registrar of Contractors records reveal numerous complaints against Respondent’s license. Therefore, it is appropriate to discipline Respondent’s license in this case. RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class C- 21R license be temporarily and actively suspended until the Registrar receives proof that Respondent has properly completed items 2, 5, 7, 9 and of the Corrective Work Order. It is further recommended, in addition to the above provided penalty, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 36 months, including future renewal periods, in the amount of $3,000, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 36 month period and only if no claims are then pending. Such bond shall be posted on or before the effective date of this Order or prior to the last day of any applicable active license suspension, whichever is later. Failure to timely post such bond shall result in the immediate or continued suspension of Respondent’s license.

Done this day, January 30, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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