ALJDEC

01F-M0237-ROC · Registrar of Contractors · 2001-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2001. APPEARANCES: Jonathan Miller appeared on his own behalf. Respondent was represented by Brad Denton, Esq. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ The hearing in this matter was held on February 7, 2001. The record was held open until February 16, 2001 to allow the parties to submit supplemental briefs. The issues in this case center on allegations that Respondent (1)violated A.R.S. §32-1154(A)(3) (violation of any rule adopted by the registrar) by failing to comport with the workmanship standards enunciated in A.C.C. R4-9-108 and (2) violated A.R.S. §32-1154(A)(7) the doing of a wrongful or fraudulent act which results in substantial harm to any person. The evidence in this case clearly demonstrates that Respondent violated both statutory provisions by refusing to extract a plumbing snake that had become lodged in a pipe in Complainant’s home unless Respondent was first paid money that it claimed it was due. . . .

FINDINGS OF FACT 1. Complainant is a home owner in Apache Junction, Arizona. During August, 2000, while Complainant’s wherein the process of refurbishing their home’s bathroom, a problem developed with the “P” trap of the drain of the bath tub. The trap became faulty, causing serious water damage to the bathroom. 2. Respondent was contacted by Complainant to come to Complainant’s home and repair the p-trap. Respondent’s workman, Todd Johnson was dispatched to the home to begin effecting the repairs. Because the p-trap was located in the concrete slab beneath the tub, Mr. Johnson had to jack -hammer out concrete in order to gain access to the p-trap. Mr. Johnson spent considerable time performing work at the home, including jack- hammering out the concrete, other wall demolition, and replacing the p- trap. 3. Mr. Johnson also felt it best that prior to replacing the p-trap, the drain line behind the p-trap which apparently leads to the sewer should be routed out. To accomplish this, Mr. Johnson used a plumbing snake which was approximately 3/16 inch diameter. The testimony showed that the size of snake used was appropriate for the size of drainage pipe that was being cleaned out. 4. The parties presented differing testimony as to whether Mr. Johnson’s use of the snake was proper. Complainant contends that Mr. Johnson drove the snake too far, sending it approximately 35 feet into the pipe. Respondent contests this, showing that the snake was sent no more than ten feet into the drain. For purposes of the resulting this case, it makes no difference since Respondent’s decision and method of utilizing the snake are not the basis for the undersigned’s determination that respondent violated statutory provisions. 5. Mr. Johnson proceeded to clean out the line using the snake. The snake became inextricably lodged in the drain pipe. Mr. Johnson even went so far as to call out another technician to the home, Don Polansky to help in the extraction of the snake. All of their efforts were to no avail. As it was late on a Friday, Respondent’s workmen indicated they would be back out to the home on the following Monday to continue with the repairs which would include removal of the snake. 6. Apparently, over the weekend, Complainant had a change of heart about Respondent’s completion of the job. On Monday, Complainant contacted Mr. Johnson and indicated that he did not want Respondent to complete the repair work. Instead, the only thing Complainant wanted Respondent to do was to remove the broken snake. Mr. Johnson told respondent he would first have to check with Respondent’s president, Ike Tippets, to find out how to proceed. Respondent, having apparently been paid nothing to that point, refused to remove the broken portion of the snake. Respondent’s reasoning was that the snake would have been removed anyway as a part of the repairs. 7. As a result of Respondent’s refusal to remove the snake, Complainant incurred expenses of approximately $1100.00 in having another contractor remove the snake. Respondent’s conduct in refusing to remove the snake was wrongful. 8. Subsequently, as a result of this chain of events, the Complainant filed a law suit against respondent in small claims court seeking damages in of $2200.00 for repairs necessitated in removing the snake from the pipe. The justice of the peace ruled that the “Plaintiff will take nothing on his claim, nor will defendant (sic) on his counter claim.” The justice of the peace also ruled that there was no contract between the parties and that Complainant received $4,104.82 in insurance claims which, according to the justice “more than offsets the amounts paid out for Plaintiff for the work performed.” 9. The undersigned has considered the Respondent’s complaint history in fashioning the recommended decision in this case. CONCLUSIONS OF LAW 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. * * * AAC R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” 3. The evidence establishes that Respondent violated A.R.S. §32- 1154(A)(7) by failing to remove the snake from the drain. Such conduct was wrongful and left Complainant in a far worse position than he would have been had Respondent removed the snake. Complainant incurred substantial injury as a result of this wrongful act (an additional expense of $1100.00). 4. The evidence also establishes that Respondent violated A.R.S. §32- 1154(A)(3) and its concomitant rule, A.A.C. R4-9-108, by refusing to extract the broken snake. 5. Complainant requested that the undersigned, as part of imposition of any sanction against the license, impose an ward of restitution. Based on a review of the minute entry from the parties small claims case, an award of restitution in this proceeding is not possible. The restitution issue was decided adversely to Complainant in the small claims matter and the doctrine of res judicata precludes an award of restitution in this case. RECOMMENDED DECISION IT IS RECOMMENDED THAT THE Registrar find that Respondent has violated A.R.S. §32-1154(A)(3) and A.R.S. and §32-1154(A)(7). It is further recommended, that commencing on the effective date of the Registrar’s final order in this case that the Respondent License 151803, Class K-37 for a period of thirty(30) days. . . .

Done this day, March 8, 2001.

______________________________________ Gregory L. Hanchett 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 ___________________________

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826