ALJDEC decisions subject to certification as final

06F-M2227-ROC-rhg · Registrar of Contractors · 2007-12-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2007 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, John Dillingham. 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 install a fire protection sprinkler system in the addition to his home, as well as the existing portion of the home. Complainant alleges certain deficiencies in the work performed and/or materials provided 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. As part of his addition project for his home, the local building authority required Complainant to have a fire protection system installed throughout his home and new addition. In this regard, on or about March 2, 2005, Complainant entered into the contract with Respondent to accomplish this work. b. Complainant was out of town during the summer months, which was the period of time during which Respondent performed its work on the project. c. While Complainant was out of town, his general contractor had a key to the premises, as did the electrician. In addition, he testified that the plumber also had access to the home. d. Evidence of record established that sometime after the rough-in for the sprinkler system had been installed, with the water pipes in the ceiling, along with the openings for the sprinkler heads in the ceiling drywall, a small drip type leak was observed in the sprinkler system, in a specified area of the original portion of the home. e. Complainant’s general contractor contacted him about this condition and Respondent was in turn contacted to repair the leak. Respondent repaired the leak. f. Evidence of record showed that water from the leak had gotten onto the carpet in the area below the leak. In addition, some unidentified person had placed a metal container on the carpet below the leak. Apparently, the container had some water leakage of its own, causing some type of rust stain to occur on the carpet. g. Complainant admitted that his general contractor had advised him that the water, which had accumulated in the metal container, was rusty looking. h. Complainant’s general contractor testified that he did not observe Respondent’s employees using any drop cloths when they were making holes in the ceiling and Complainant testified that his plumber gave him the same information. Complainant is upset that Respondent failed to take measures to protect his furnishings and clothing inside the home, thereby causing drywall and plaster debris to get onto his furniture and clothing. i. Complainant’s general contractor testified that he did not place the metal container in the area in question and had no idea who had put it there. j. After filing the instant Complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the hearing and presented testimony. k. The inspector testified that he convened a jobsite inspection, after receiving the filed Complaint. He could find no deficiencies in the work performed by Respondent. However, he did not observe a rust type ring in the area where the metal container had been placed to catch the drip. At the jobsite inspection, Respondent agreed to clean the carpet, in an effort to see if the stain would come out. Respondent agreed to perform this work, despite the fact that it did not place the metal container in the location. l. Based on the jobsite agreement, the inspector issued a Corrective Work Order, directing Respondent to comply with the jobsite agreement to clean the carpet. m. At the instant hearing the inspector stated that if Respondent had not agreed to clean the carpet at the jobsite inspection, he would not have ordered said procedure, due to the fact that he could find no conclusive evidence regarding who had placed the metal container on the carpet to catch the water drip and it was the inspector’s opinion that the metal container had caused the rust ring. n. Evidence of record demonstrate that Respondent did send a carpet cleaning company to attempt to clean the carpet but the cleaning procedure failed to remove the stain from the carpet, leaving a very definite stain on the carpet. o. Complainant ultimately contacted his insurance company and they replaced the damaged carpet, under the terms of the insurance policy. p. Terry Grantham (“Terry”), Respondent’s president appeared at the hearing and testified. He talked about the building authority requirement of a hydrostatic pressure test on the system, before they would pass the installation. This test was performed and no leaks were found in the system. According to Terry, the leak in question occurred sometime after the hydrostatic pressure test was completed. He indicated that the leak could have been caused by someone damaging the “nipple head” that had been placed on the ceiling opening for the sprinkler head or by an increase in city water pressure. q. Terry also testified that his company does not take measures to protect underneath the sprinkler heads, during installation, because it would not be cost effective, due to the number of sprinkler heads that go into a project. r. Jim Grantham (“Jim”), one of Respondent’s employees, appeared at the hearing and presented testimony. According to Jim, he was sent out to repair the leak. When he arrived at the property, he observed the drip and the metal container was in place underneath the drip. He fixed the leak but left the metal container where he had found it. s. Complainant contends that Respondent’s work on the project was unprofessional, due to the fact that it failed to use drop cloths or other devices to protect his furniture and clothing from debris and that his carpet was ultimately damaged by a drip from the system. He seeks an Order that Respondent should reimburse his insurance company for their costs in paying to have the carpet replaced and also some type of rebate to him on the original contract cost. Respondent asserts that the Registrar of Contractors is the inappropriate forum to order indemnification to an insurance company and to award money damages to Complainant.

3. 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. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. As soon as Respondent was notified of the leak situation, it returned to the jobsite and repaired the leak.

4. The evidence presented at the hearing failed to show who placed the metal container under the drip. Although the drip in question would have most certainly gotten the carpet wet, the weight of the evidence presented militates for the conclusion that the water emanating from the metal container itself caused a rust ring to occur on the carpet. But for the rust ring from the metal container, it is possible that the water itself could have easily been cleaned from the carpet. Under all of the facts and circumstances presented herein, Respondent should not be held responsible for the rust ring caused by the water drip being caught in the metal container, which had been placed in said location by an unknown person. Complainant failed to sustain the requisite burden of proof on this issue.

5. The evidence presented at the hearing was also inadequate to support any finding that Respondent’s failure to place drop cloths, under the areas where the holes were cut into the ceiling for the sprinkler heads, was contrary to any specific industry standard or that there was any permanent damage to Complainant’s furnishing or clothing. Complainant failed to sustain the requisite burden of proof on this issue.

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 his 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 (06F-M2227) 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.

Done this day, December 13, 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 ___________________________

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