ALJDEC

02F-H0249-ROC · Registrar of Contractors · 2002-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2002 APPEARANCES: James Houts, Complainant; William Hickman, Respondent; Mary Ettinger, Complainant’s witness; Dolores Milkie, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Jim Houts purchased a manufactured home and the real estate that it was installed on. Prior to closing, the seller hired Sewer and Septic Solutions, the Respondent, to pump the septic tank and submit a report to the escrow company. Respondent submitted the report and Complainant moved into the home on November 19, 2001. 2. Complainant wanted to put in a carport and asked Respondent to come show him where the tank and lids were so that he could submit a plot plan to the City. Respondent came and pointed out the areas where he remembered the tank and lids as being. Complainant later learned that the tank and lids were in an entirely different location when his septic system began to fail. 3. After having some company in April 2002, Complainant noticed a wet area outside the home and contacted the county health department. He was told he had a leach field failure. The leach field ran under an addition to the home and needed to be in an open area. Complainant had to install a whole new leach field. During these events, Complainant discovered that the diverter pipe was blocked by a rock and a rolled up rug. He filed a complaint with the Registrar of Contractors against Respondent alleging that Respondent had filed a false report to the escrow company. He also questioned how Respondent could have cleaned and hydrojetted the tank when he couldn't explain where the tank and lids were and when he hadn't discovered the blocked diverter pipe. 4. Respondent appeared at hearing and testified that cleaning and hydrojetting the tank would not have exposed the diverter pipe to his view so he would not expect to discover such a problem in a case like this. He submitted information to show that the diverter pipe is located beyond the area that he was hired to pump and clean. He further testified that he pointed out the area where the tank and lids were to the best of his memory but was wrong. He apologized and explained that he had done the job with a partner and also does many jobs, so his memory was not clear. It should also be noted that the leach field and the home addition were not installed by Respondent and the placement of these was the primary defect that caused Complainant most of his costs to repair the system. While it may have helped Complainant to have the seller replace the leach field if Respondent had discovered the defect, it was not shown that Respondent was in a position to make that discovery. 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) and (7). 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 Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. 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 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). 6. In this case, the Complainant has not established that Respondent violated the above statutes. It was not shown that the report submitted to escrow was false as far as it went. It also was not shown that Respondent should have discovered the partially blocked diverter pipe in carrying out the duties for which he was employed. Finally, it was not established that the reason for Complainant’s having to replace his leach field was due to any action or failure by Respondent. Therefore, the complaint should be dismissed. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Registrar of Contractors dismiss the complaint in its entirety. Done this day, November 4, 2002 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, to:

Registrar of Contractors Michael P. Goldwater ATTN: Jennifer Brown 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