ALJDEC

01F-P0262-ROC · Registrar of Contractors · 2001-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2001. APPEARANCES: The Complainant, C.E. Sherrill, appeared personally. Respondent appeared through its member and qualifying party, Britt Lundigan. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ At the commencement of the scheduled hearing Complainant announced that his attorney of record, Jon R. Hultgren, Esq., would not be appearing at the hearing. Complainant stated that he would be representing himself at the hearing. 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 Number 121106, a Class C-53 drilling contractor license, issued by the Registrar of Contractors. 2. In March of 1999, Respondent drilled a water well for Complainant on some property owned by him. 3. The completed well was not tied directly to a house located on Complainant’s property. Complainant eventually installed a 2,500 gallon underground water storage tank. 4. Respondent installed a 1 ½ h.p. water pump manufactured by Sta-Rite Industries, Inc. in the well. 5. After completing the installation of the well and water pump, Respondent ran the well for two hours to assure that it was operating properly, which it did do. 6. The water pump installed by Respondent had a limited warranty for a period of one year from the date of original installation or two years from the date of manufacture, whichever occurs first. 7. After the water well was drilled and the pump installed, Respondent had a tenant living on the subject property who drew water from the well. There is no evidence that the tenant had any problems obtaining water from the well. 8. In January of 2001, Complainant contacted the Respondent to advise that the well was malfunctioning. 9. It is determined that Respondent agreed to pull the pump and inspect it for Complainant. 10. After inspecting the pump, Respondent advised Complainant that the equipment was no longer under warranty and that he should contact a drilling contractor who performs repair work. Respondent had found an excessive amount of calcium on the pump. The Respondent does not normally do repair work; it primarily drills and installs wells. 11. Despite Respondent’s advise to Complainant, it continued to troubleshoot the well. Respondent moved equipment on the subject property, which eventually got stuck in the mud due to winter weather conditions. 12. It is determined that the water pump installed by Respondent was no longer under warranty when Respondent inspected it in February of 2001. 13. Respondent installed additional piping in an attempt to get the well to produce water. There is insufficient credible evidence to establish that Respondent had to install the additional piping due to its original installation being deficient. 14. Respondent concluded that the water well was not operating properly due to wiring problems and the water pump being damaged. 15. When Respondent attempted to discuss the costs to repair the well with Complainant, the Complainant refused to compensate Respondent for any of the repairs. 16. After Complainant’s refusal to pay Respondent for any repairs, Respondent refused to perform any additional work on the well. 17. Respondent’s refusal to perform any further repair work on Complainant’s well after Complainant’s refusal to pay any amount of money to Respondent for the repairs is found not to have been an abandonment of a contract. 18. On or about April 19, 2001, the Complainant filed a complaint with the Registrar of Contractors alleging that Respondent had violated the provisions of A.R.S. § 32-1154(A). 19. On or about September 13, 2001, Complainant contracted with Aero Drilling & Pumps, Inc., for the purchase and installation of a Sta-Rite Model L7P4FHL 1 ½ water end pump and galvanized piping. The total cost for the purchase and installation of that pump and piping, including tax, was $997.33. 20. There is insufficient evidence to establish that Respondent’s deficient workmanship in the original installation of the well and well pump caused the well not to operate properly some 20 months after completion of that work and after that work had been tested by Respondent and found to have operated as intended. 21. Respondent is found not to have done any act or omission causing substantial injury to the Complainant. 22. During the hearing testimonial evidence was elicited which indicated that Respondent’s member and qualifying party had committed a trespass upon Complainant’s land. It is noted that Respondent’s member and qualifying party went on the land because Respondent had equipment and tools on that property which could not be moved due to muddy conditions caused by weather. However, that act is found to be outside of the scope of the Citation and Complaint in this matter.

CONCLUSIONS OF LAW

1. The evidence of record is insufficient to establish that Respondent violated the provisions of A.R.S. § 32-1154(A)(1), (7) and (3); namely Rule R4-9-108. 2. The evidence of record supports the dismissal of the Citation and Complaint in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed. Done this day, December 24, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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