ALJDEC decisions subject to certification as final

07F-1252-ROC · Registrar of Contractors · 2007-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2007 APPEARANCES: Complainants appeared on their own behalf and Respondent was represented by its attorney, Robert Steward. 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. Complainants were acting in the capacity of owner/builders on their total reconstruction of their home. As part of the construction project, they retained Respondent to accomplish specified plumbing work. They allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. There were five (5) issues on the filed Complaint in regard to Respondent’s plumbing work. The first issue involved the new sewer line for the existing septic tank in the rear yard. Galdino Lelli (“Galdino”) testified that Complainants were looking for Respondent to install a gravity based septic system, wherein the waste material from the house would fall naturally down to the inlet side of the septic tank.

3. Evidence of record showed that Respondent’s initial work on the septic tank was indicative of substandard workmanship, as manifested by the fact that instead of placing his new sewer line to be in position to connect to the septic tank, he erroneously placed same to be connected to the leach line. Once the problem was discovered, it was determined that Respondent had now installed the new sewer line too low to flow naturally (downhill)into the inlet of the septic tank.

4. The Registrar of Contractors’ inspector, assigned to this matter, observed this deficiency and issued a Corrective Work Order (“CWO”), requiring Respondent to correct this issue. Respondent responded to the Agency directive and commenced work on installing a sump pump, in order to push the waste uphill to the septic tank. Complainants admittedly stopped this corrective work from going forward, due to the fact that they did not want a mechanical device in the ground, which could cause them problems in the future.

5. The inspector testified at the hearing that it is the plumber’s responsibility to determine where the septic tank is located, in order to assure that his sewer line is installed with the proper slope. Respondent contends that Yolanda Lelli (“Yolanda”) advised him where the septic tank was located and he relied on her erroneous representation. Yolanda testified that she had no idea where the septic tank was located and only showed him the location of the clean-out riser.

6. It is determined and held that Respondent accepted the conditions of the job to install a gravity based septic system and it was incumbent upon him to locate the septic system, prior to installing the sewer line. Complainants should not have to accept a mechanical apparatus (sump pump) in order to make their relatively simple septic system operate. Respondent’s failure to install the gravity based sewer line and to hook same up to the septic tank is indicative of substandard and unacceptable workmanship, as well as a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

7. The second issue of the Complaint involved Respondent’s alleged failure to complete a specified gas line connection. The CWO required Respondent to complete this work and although Respondent came back to the property to complete same and indicates that he performed a pressure test on the line, which passed the test, evidence of record showed that the local building authority would not pass the gas line hook-up without a pressure test. When the line was ultimately tested by others, a leak was discovered. The leak was traceable to a slit in the piping in the area where the new connection installed by Respondent met the existing gas line.

8. Respondent contends that some other trade must have come in after he performed his work and damaged his gas line. Yolanda testified that no other trade dug in said area after Respondent left the jobsite.

9. It is determined and held that Respondent installed a gas line with a leak and same is indicative of substandard and unacceptable workmanship, as well as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

10. The third issue involves a floor drain for the icemaker. Although the applicable plumbing page of the plans and specifications does not show such a drain, the installation of the drain is shown on the general floor plan of the plans and specifications and the assigned inspector testified that it is prudent for a plumber to examine all of the plans and specifications, not just the plumbing pages. Thus, the CWO required Respondent to correct this situation.

11. It is determined and held that Respondent failed to install the floor drain as set forth in the applicable plans and specifications and such failure is indicative of substandard workmanship, as well as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws. Complainants have since obtained an icemaker that does not require a floor drain.

12. The fourth issue involved the installation of the plumbing under the island sink. According to Complainants, the copper piping installed for the loop vent was installed in such a manner as to cut down the use of the cabinet space under the sink. The inspector testified that this was, in his opinion, a code violation. Respondent disagrees that there was a code violation in regard to the placement of the loop vent. In addition, Respondent presented into evidence a letter from a mechanical designer, which failed to show any deficiency in the placement of the loop vent.

13. The evidence of record was inadequate to support any finding of a construction deficiency regarding the loop vent for the island sink. Complainants failed to meet the requisite burden of proof on this issue.

14. The fifth issue involved Respondent’s installation of plumbing for a free standing bathtub. Galdino testified that Complainants had to hire others to move the plumbing when the tub was delivered to the jobsite. Respondent’s failure to install the plumbing in the correct location for the freestanding tub is also found to constitute substandard and unacceptable workmanship, as well as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

15. Complainants have had others correct or resolve all of the plumbing deficiencies set forth in the Complaint. In this regard they claim entitlement to $13,683.00 in monetary damages. They base this contention on the amount of money they spent, over and above the original contract price with Respondent. Respondent contends that Complainants owe him over $12,000.00, which includes the contract balance and claimed extras. Complainant did not show any competitive bids for the work that they paid others to accomplish the corrections, nor did they provide any receipts for the claimed expenditures.

16. The instant matter is an administrative, disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal, but merely one duty-bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline. Moreover, the money dispute between the parties is found to constitute a good faith dispute regarding what, if any, money is actually owed to Complainants. The Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate such a money claim. Thus, in the event that the parties continue to remain unable to resolve these monetary issues, then a civil action will need to be brought before a civil court of competent jurisdiction.

17. Although Respondent was not able to fully comply with the terms and conditions of the CWO, it was adequately shown that he made an effort to comply and based on further disagreements with Complainants, regarding the nature of the corrections, he was effectively prevented from achieving total compliance. Under the facts and circumstances presented herein no violation of A.R.S. §32-1154A (23) is found to be supported by the evidence presented.

18. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-37R license of Respondent shall be placed on a period of disciplinary probation for sixty (60) days. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. 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, September 18, 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