ALJDEC

01F-S0123-ROC · Registrar of Contractors · 2001-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|OMAR REYES, |§| | | |§|CASE NO.: s01-0123 | |Complainant, |§| | | |§|DOCKET NO.: 01f-S0123-roc | |-v- |§| | | |§| | |License No. 105402, Class C-53 of|§|RECOMMENDED | | |§|DECISION AND ORDER | |Timothy John Driver, d.b.a. |§| | |DRIVER DRILLING COMPANY, |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: Wednesday, August 29th, 2001, at 8:30 a.m. APPEARANCES: The complainant, Mr. Omar Reyes, appeared on his own behalf. The respondent Driver Drilling Company appeared through the owner, Mr. Timothy J. Driver. ADMINISTRATIVE LAW JUDGE: Grant Winston.

This matter came on for administrative hearing in the Office of Administrative Hearings. Testimony was heard and other evidence 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, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C- License number 105402. 2. Complainant is a homeowner residing in Sierra Vista, Arizona. 3. The parties contracted on May 4, 2001, for the respondent to drill a well hole on complainant’s property. The contract price was $3,400.00, which complainant has paid the respondent in full. 4. In order to begin drilling the hole, a county permit from Cochise County was needed. Cochise County requires that all wells be located at least 100 feet away from any septic or sewer system. As it happened, where respondent drilled was only 56 or 57 feet from complainant’s septic system, making the well unsafe for its intended purpose, and in violation of the county code. Which party ought to bear the responsibility for this misplacement of the well is the sole issue in this case. 5. The parties’ contract and the county permit are both silent as to the specific location of where complainant’s well was to be placed. 6. Respondent contends that, as a business practice of his, the location of the well is the sole responsibility of the customer; however, the evidence in this case shows that the respondent did undertake responsibility for locating the site of this complainant’s well. There is also some evidence that complainant moved the site established by the respondent, to a site closer to their home and septic system, before drilling began. 7. Pursuant to the permit application process, the respondent’s secretary went to the complainant’s property to establish the well site. There she asked the complainant and his live-in girlfriend where was there septic system. They showed the respondent’s secretary where it was. She then measured the distance from the septic system using a tape measure, and placed a small red flag where the well should be drilled. The secretary drew a diagram of the property showing the well site more than 100 feet from the septic system and this diagram was submitted as a part of the application. Credible evidence from the complainant establishes that the application itself was completed by someone other than complainant, and whoever completed the application signed complainant’s name. A reasonable inference from the other evidence is that it was respondent’s secretary who did this. The permit was granted by the county. 8. Complainant’s evidence (Exhibit 3, a letter from Cochise County Department of Health and Social Services Environmental Health Specialist, Ms. Stacey J. Korbeck-Reeder) shows that the well site choice was moved by the complainant. When respondent appeared on the scene to drill the well, the complainant told respondent that he, complainant, wanted the well located closer to his home. Complainant originally wanted to drill the well farther from the home, and when the site changed, respondent did not verify the distance between the new well site and septic tank or leach field. The well was drilled 56 or 57 feet from the septic system. 9. Complainant discovered that it would be unsafe to drink water drawn from his well as it was too close to the septic system. He asked respondent to move the well, and respondent refused unless he would be paid to move it. Complainant filed the instant complaint with the Registrar of Contractors on May 22nd, 2001. 10. The complaint was assigned to Registrar of Contractors Inspector, Mr. Mike Nieves. Inspector Nieves conducted a job-site inspection on May 30th, 2001, and verified that the well was only 56 or 57 feet from the septic system. He issued a Corrective Work Order to the respondent dated May 31st, 2001. In it he ordered the respondent to correct the well location within 15 calendar days from the date of the order, which was a reasonable amount of time. 11. Respondent did not move the well, believing himself entitled to be paid first, so a hearing was requested. A Citation and complaint was issued from the registrar’s office on July 27th, 2001, citing the respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3., namely A.A.C. R4-9-108, Workmanship Standards. Respondent filed an answer to the citation and complaint on August 10th, 2001. This hearing ensued. 12. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 13. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092. 14. The respondent herein is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 15. A.R.S. §32-1154.A.3., prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this case is A.A.C. R4-9-108, Workmanship Standards. Subsection A of that rule requires all of a licensed contractor’s work to be performed in a professional workmanlike manner. Respondent violated this rule when he drilled the well less than 100 feet from complainant’s septic system. When respondent’s secretary first went onto the property she established the location of the septic system, measured, and established a suitable location for the well, i.e., one more than 100 feet from the septic system. She submitted her diagram along with the permit application to the county assuring the county that its code requirement would be met. In doing all this the respondent, through his agent, accepted professional responsibility for a suitable location of the well. That responsibility continued to exist when respondent became aware that complainant wanted the well closer to his house. Having once assumed responsibility for the suitability of the well’s location, respondent then had the continuing responsibility to re-verify that the new location also was more than 100 feet from the septic system. Had respondent not wanted the responsibility for a well location in violation of the county code, he should have left the location and permitting process entirely in the hands of the complainant. 16. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractors laws of the State of Arizona, without valid justification, within a reasonable period of time, after receiving written directive from the registrar to do so. The written directive in this case is the Corrective Work Order. The CWO directed the respondent to correct the well location within 15 calendar days. That was a reasonable amount of time to do so. Respondent failed to comply with the CWO and has no valid justification for the failure. Respondent violated A.R.S. §32- 1154.A.23. 17. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of fraud. There is no violation of A.R.S. §32-1154.A.7 independent of the misplacement of the well. RECOMMENDED ORDER In view of the foregoing, it is recommended that the respondent’s Class C-53 License number 105402 shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the Corrective Work Order by appropriately moving complainant’s well to a suitable site not less than 100 feet from complainant’s septic system. It is further recommended that if the respondent properly accomplishes the above described corrective action, on or before the effective date of this order, then the above provided license suspension shall not take place and citation and complaint number S01-0123 shall be closed. Done this day, September 14th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of September, 2001, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488