ALJDEC decisions subject to certification as final

06F-M2153-ROC · Registrar of Contractors · 2007-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2006 and February 27, 2007 APPEARANCES: Complainant was represented by his attorney, James Hart and Respondent was represented by its attorney, Karl MacOmber. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to deepen an existing well on his property. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Alex Moncada (“Moncada”), the owner of the property wherein the wells are located appeared at the hearing and provided testimony. Although he owns the property, he indicated that Complainant owns the wells in question. b. According to Moncada, there was an original well (well no. 1) on the property, which provided water for some time. Eventually, the water became salty and then it was decided to construct a new well on the property (hereinafter referred to as well no. 2). Evidence of record showed that well no. 1 was never abandoned. c. Well no. 2 was started by a contractor, other than Respondent, and Respondent completed work on well no. 2. d. According to Moncada, the water from well no. 2 was good at first but then it, like well no. 1, became salty. Evidence of record showed that well no. 2 is only about ten (10) feet from the original well. e. Several months after Respondent completed work on well no. 2, it was back on the property to perform specified remedial work on said well and during the course of said remedial work, the bailer being used broke off from the cable and became lodged at the bottom of the well. f. Based on the problem with the bailer being stuck at the bottom of the well, Complainant insisted that Respondent construct another well on the property. Although Respondent did not agree with Complainant’s demand, in the interest of good customer relations, Respondent agreed to construct another well on the property and completed the project on another well (hereinafter referred to as well no. 3). g. According to Moncada, the water from well no. 3 was good at first but then also became salty tasting and appeared to be whiter in color than the original water from said well. There are no complaints regarding the construction of well no. 3, other than the fact that the water is now salty and Complainant contends that there is some type of cross contamination from well no. 2 to well no. 3. h. Evidence of record showed that in addition to the three wells mentioned above, there are also irrigation wells located on the property. Irrigation wells don’t have plugs in them and thus, water can migrate. i. Lori Cason (“Cason”) from the Arizona Department of Water Resources (“ADWR”) appeared at the hearing and presented testimony. Cason testified that ADWR received a Complaint from Complainant, regarding Respondent’s work on the well projects. She indicated that she reviewed reports on the construction of the wells and determined that same were built in accordance with applicable ADWR standards. j. Cason indicated that Complainant wanted her agency to order Respondent to abandon well no. 2, but she declined. She also indicated that it’s the responsibility of ADWR, not the Registrar of Contractors, to decide whether a well needs to be abandoned. Moreover, she indicated that dropping of drilling equipment into a well is not necessarily negligence and not necessarily a reason to abandon a well. k. Cason also indicated that her agency regulates the quantity of water, not the quality. Her report, regarding the conclusions she reached on the Complaint filed with her agency, was entered into evidence. Her report provides, among other things, that “the Department has determined that the section of well A you believe to be a conduit for contamination does not fall within the 20 ft. surface seal requirement and the ambient quality of the regional aquifer where the well is located has not been established as a ‘known area of contamination,’ therefore, the minimum standards have been met and no further action will be taken by the Department on Well A or B.”[1] l. Greg Vernon (“Vernon”), Respondent’s shop supervisor appeared and presented testimony. Vernon claimed that he advised Complainant that the first two (2) wells would need to be abandoned or well no. 3 would be subject to cross contamination from the other wells, due to the close proximity of all of the wells. He indicated that he had warned Complainant that the location he chose for well no. 3 was much too close to the other wells and it should be placed in another location. Notwithstanding the warnings from Vernon, Complainant refused to move the location for well no. and same was installed in the area selected by Complainant. Complainant denied that Vernon ever gave him any warnings regarding the location for well no. 3. m. Complainant testified that he hired Respondent to deepen well no. to 1,000 feet with a ten inch diameter and he only received a little over 900 feet and an 8 inch diameter. According to Complainant, the driller of well no. 2 advised him that the ten inch bit broke while drilling and he had switched to an eight inch drill bit. n. Complainant contends that he did not receive what he paid for on well no. 2. Nevertheless, he admits that well no. 3 was constructed at no charge and it is 1,000 feet deep and has a ten inch diameter. o. Complainant demands that Respondent abandon well no. 2, in order to prevent what he believes is vertical water migration from well no. 2 to well no. 3. p. The original contract between the parties was entered into evidence. It shows the work to be performed by Respondent. It is silent regarding any abandonment of the well by Respondent, in the event that Complainant believes the well should be abandoned. q. Complainant testified that his Complaint against Respondent is not in regard to the quality of the water, but that he contends Respondent should be responsible to abandon well no. 2, because he believes that bad water from well no. 2 is getting into well no. 3. In addition, he contends that he overpaid for the work on well no. 2, since it did not meet his specifications. r. Complainant does not dispute that Respondent constructed well no. at no cost to him. Moreover, he admits that Respondent never agreed to abandon well no. 2, when they gave him well no. 3 at no charge. s. Clark Vaught, Respondent’s qualifying party, appeared at the hearing and presented testimony. He also indicated that ADWR, not the Registrar of Contractors, regulates whether or not a well should be abandoned. t. Respondent’s exhibit “E” was entered into evidence. It is a document prepared by Vaught and dated October 12, 2005. It is signed by Complainant. Among other things, this document states “Farwest has been contracted to drill a new well and due to the proximity of the new well location to an existing well, cross transfer of fluids is likely to occur.”

u. There was no inspection of this Complaint by the Registrar of Contractors and thus, no Corrective Work Order was ever issued regarding the workmanship on well no.2.

3. Although the evidence presented demonstrated that a bailer got stuck in well no. 2 and the well was smaller in diameter and not as deep as Complainant had wanted, Respondent ultimately agreed to drill a second or replacement well, at no charge to Complainant. This replacement well was shown to be the required depth and diameter contemplated by the original contract. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards.

4. The weight of the evidence of record supports a finding that the decision regarding whether a well needs to be abandoned rests with ADWR, and not the Registrar of Contractors. That may account for why the Registrar of Contractors failed to perform any jobsite inspection on this Complaint. ADWR ruled that no abandonment was required here. Thus, it is determined and held that Respondent does not have to abandon well no. 2.

5. Respondent’s remedy, of giving Complainant a free replacement well, in exchange for any construction deficiencies in the original well, is found to be more than reasonable. The evidence of record supports a finding that well drillers never guarantee the quality of the water that may be provided by a well. Under all of the facts and circumstances presented herein it is determined and held that Respondent did all that could be expected in order to deal with any perceived deficiencies in well no. 2 and nothing in its overall conduct would rise to the level of a violation of the spirit and intent of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain the burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. 07-0435), together with the Complaint upon which it is based, be dismissed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

one this day, March 14, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Well A is well no. 2 in the instant document and well B is the well that is referred to as well no 3 herein.

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