ALJDEC decisions subject to certification as final

07F-2456-ROC · Registrar of Contractors · 2008-03-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2008.

APPEARANCES: >The Complainant appeared in his own behalf. >The Respondent appeared through Joshua Schira, its qualifying party and a member of the LLC entity.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Complainant, Gary Kramer, was and is the present owner and occupant of a residence that was the subject of an extensive remodeling project. Complainant was shown also to be the qualifying party and owner of an entity possessing a general contracting license. The evidence was inconclusive with respect to whether or not Complainant’s licensed entity was serving as the project’s general contractor at that time. (Such entity’s license was cancelled shortly after Complainant occupied the

structure, but he is presently listed in the same owner and qualifying party capacities on a successor general contracting license). In any event, the testimony at the hearing warranted a finding that Complainant, as an individual, possessed above-average knowledge and experience in most all phases of construction activity

2. Respondent was the selected specialty subcontractor for performing all the rough and finish plumbing work on the remodeling project. One aspect of the agreed rough plumbing installation work was to have installed clean-out drains at various household locations that would provide a means for clearing any subsequent blockages that may be experienced at or near sink, toilet and shower or bathtub locations.

3. Every clean-out drain installed was to contain an effective plug or cap over the drain pipe opening. It was also demonstrated that the piping was to be temporarily left open for the purpose of allowing appropriate water pressure testing by the municipal building authority, during which testing it would be necessary to have test balls inserted into the pipes, after which testing the test balls would be subsequently removed and the necessary plugs or caps would be affixed or replaced.

4. It appeared that Respondent’s owner and qualifying party, Joshua Schira, who was shown to have individually performed most all of the jobsite plumbing work, had traveled out of the State soon after completing the rough plumbing and that Complainant, either as an owner-builder or as a key member of his general contracting entity, had concluded arrangements for the City’s required progress inspection of the installed plumbing piping by inserting and then removing, or causing the insertion and removal of, the test balls.

5. Respondent resumed its jobsite work after its owner and qualifying party returned to Arizona, and the finish plumbing phase was ultimately completed. The credible testimony indicated that at least one, and perhaps several, clean-out drains

had not been capped or plugged. It is found that Respondent, especially as a licensee in one of the safety trades, was responsible to either install such plugs or to otherwise assure that such plugs or caps were properly in place at all clean-out drain locations.

6. The testimony tended to indicate that Complainant utilized the services of a drywall subcontractor or individuals, not shown to have been properly licensed by the Registrar, for the application of drywall materials over the framing members so as to place the plumbing piping within the household walls.

7. A temporary Certificate of Occupancy was issued by the municipality, and Complainant thereafter commenced his occupancy of the residence. A final Certificate of Occupancy was obtained shortly following Complainant’s initial occupancy.

8. An unpleasant sewage-type odor began to be noticeable in the vicinity of the master bathroom, prompting a search by Complainant for the source of the problem. The results of such investigation revealed that the odor was emanating from the plumbing piping at one or more of the clean-out drain locations behind the sheetrock wall and that a significant quantity of water was escaping from the clean-out drain under the vanity cabinet sinks.

9. The evidence further indicated that a necessary plug or cap had not been placed or replaced over the clean-out drain that was located in the master bathroom below the double under-mount sinks installed in a vanity cabinet with a travertine countertop and backsplash. Such entry of water from the uncapped clean-out drain onto and under the adjacent walls over a period of time was shown to have caused substantial deterioration of materials, a degree of sinking of the countertop over the vanity cabinet, as well as a probable mold contamination problem.

10. It did appear that the vanity cabinet was installed, together with the sinks, by Complainant, himself. The credible evidence revealed the likelihood that at least one or

two other clean-out drains in the plumbing piping serving the master bathroom remained unplugged or uncapped behind the wall of that bathroom near the toilet and shower. Complainant’s investigation additionally revealed that several other clean-out drains installed at other household locations also lacked appropriate caps or plugs.

11. The testimony at the hearing was highly conflicting with respect to the events, conversations and overall dealings between the parties, as well as the timing and work performed during various jobsite visits by Respondent. No valid basis is found to exist for the disbelief of either party’s version. The conflicting testimony extended to the content of several telephone conversations between the parties wherein Respondent was notified of the household water damage and odor problems and their likely source, as discovered by Complainant. . 12. It was not disputed that neither the drywaller nor Complainant had provided cut-outs in the master bathroom sheet rock wall surface or in the vanity cabinet abutting such wall so as to effectively mark out the clean-out drain locations behind the wall and behind the vanity cabinet. It did not appear that any cut-outs were provided at or near any of the other clean-out drain locations throughout the home. A similar water damage problem at or near the kitchen sink had been avoided by the earlier discovery by Respondent of another omitted plug or cap over the clean-out drain after such sink failed to operate as intended.

13. When Respondent had returned to the jobsite to complete its finish plumbing work, the walls were all fully installed and there was no indication by way of any cut-outs as to the location of the clean-out drains so as to enable the observations that plugs were omitted. While not serving as a total excuse for failing to assure that plugs had been provided and installed, the covering over by the drywaller without any form of identifying the drain locations generates a measure of at least shared responsibility for the ultimate omission. Moreover, the undertaking of applicable

supervisory obligations on the part of either the knowledgeable owner- builder or his general contracting entity additionally generates some further measure of shared responsibility for the omitted plugs and the ensuing damages within the home.

14. It did appear that after Complainant filed his complaint with the Registrar, he expressly refused to allow Respondent to enter the residence to observe the reported damages or to otherwise participate in the Inspector’s jobsite viewing. Notwithstanding the absence of Respondent’s representative during the on-site inspection, the assigned Inspector declined to issue any Corrective Work Order to Respondent purportedly based upon the actions of Complainant, exercising general contracting responsibilities on this project, causing or allowing others to apply drywall over all clean-out drain locations, thereby concealing such drains.

15. The evidence is found to have been inconclusive with respect to the extent of responsibility placed upon any drywall subcontractor to provide cut-outs when covering walls concealing plumbing piping. Similarly, it was not sufficiently demonstrated that any plumber is responsible for providing stub-outs or other means of creating a protrusion at the clean- out drain locations to alert the drywaller to the need for such cut-outs.

16. No valid evidence was presented at the hearing as to the extent of or the monetary cost of performing necessary remedial work to address the water intrusion damage to materials, the cabinet countertop sinking and the potential mold problems. In any event, the Registrar of Contractors is not the most appropriate forum in which to seek an adjudication and award of money damages which must be sought and obtained, if at all, through pursuit of available remedies before a civil court of competent jurisdiction. This is especially true when, as here, a resort to a comparative fault analysis appears proper between Respondent, the owner- builder and the drywaller. In point of fact, the owner-builder or his general contracting entity installed the vanity

cabinet without any cut-out and also, by way of superintending, coordinating and monitoring all jobsite work, allowed the drywaller to apply the sheetrock materials without assuring that plugs were inserted or re-inserted after removal of the test balls or assuring that appropriate cut-outs had been provided.

17. The inclusion in the Registrar’s ultimate Order in this administrative disciplinary proceeding of any corrective work conditions or restitution conditions are determined not to be warranted under all the circumstances of this case as revealed by the hearing record. Instead, only a penalty against Respondent’s license, mitigated in part by the shared fault of others, appears to be the most appropriate result. In this regard, the actions of Complainant in denying access to Respondent during the Registrar’s Inspector’s jobsite visit so as to enable Respondent to view the premises and to formulate possible defenses generally cannot be condoned in light of applicable due process considerations. However, since Respondent holds a specialty license in one of the safety trades, the failure to have installed or to have assured the installation of a critical component generates a somewhat understandable reluctance for any homeowner to allow the plumber back on the jobsite for any reason.

18. In any event, in this case, a credible showing was made that both parties had communicated an applicable prior condition for either performing further work on the jobsite or allowing further on-site visits. Respondent admittedly mentioned that any return visit at the time of the parties telephone talk would generate a need to agree in advance to pay for a service call to include even the relatively small cost of the omitted plugs or caps, and it also appeared that Complainant’s willingness to allow future dealings or visits would necessitate an express advance admission by Respondent of total fault and financial responsibility for the experienced damage problems, a demand found not supported by the preponderance of the evidence of record hereunder.

19. It is determined that the failure by Respondent to have installed appropriate plugs onto the clean out drains, or to have subsequently assured that such plugs were

ultimately placed in the proper locations, reflects adversely upon Respondent’s workmanship, and such failure is further found to have constituted a wrongful (but not fraudulent) act contributing in large part to damage to Complainant’s household within the meaning of another section of the State’s contracting laws charged herein to have been violated.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990)

2. The evidence of record adequately established that Respondent has violated the provisions of A.R.S. §32-1154(A)(7) and (3); namely, Rule R4-9- 108, A.A.C.

3. The Registrar of Contractors is not the appropriate forum in which to resolve all of the parties' respective rights and set-offs. Instead, a resort to a comparative fault analysis in this case must be sought through pursuit of available remedies before a civil court of competent jurisdiction. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class K-37 license be suspended for period of Ninety (90) days of which, in light of certain matters in mitigation, only the first Twenty (20) days shall consist of active license suspension and the remaining balance of Seventy- Five (70) days shall be in the nature of disciplinary probation.

It is further recommended, in addition to the above provided penalties 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 36 months, including future renewal periods, in the amount of $2,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided 36-month period and only if no claims are then pending. Such bond shall be posted on or before the effective date of this Order or prior to the last day of any applicable active license suspension, whichever is later. Failure to timely post such bond shall result in the immediate or continued suspension of Respondent’s license.

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 will be forty (40) days from the date of that certification.

Dated: March 12, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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