ALJDEC decisions subject to certification as final

07F-A0182-ROC · Registrar of Contractors · 2007-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 2 April 2007 APPEARANCES: Complainant: Meg Glime, Complainant. Respondent: Bill O’Leary, Attorney for Respondent B & M Well Drillers, Inc.; Bridget Wallace, President of Respondent ; Bobby (“BJ”) Wallace, Vice-President and Qualifying Party of Respondent. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant contracted with Jeff Dayton of American Made Construction to build a home on a 15 acre parcel owned by Complainant near Dewey, Arizona. Mr. Dayton contracted with Respondent on 24 September 2006 to drill a well on the Complainant’s property to provide water for the home. Respondent was told by Mr. Dayton that Travis Whited was Dayton’s agent on the jobsite and that all issues relating to the drilling of the well should be directed to Whited. Respondent has 16 years experience in drilling water wells. 2. B. J. Wallace went to the jobsite and located a drill site for the well. He was told by Dayton to keep the well site on the front side of the house in order keep the distance the water had to be pumped to a minimum, and to keep the well away from the house septic field, which was on the back side of the house. Wallace staked a site and left. A few days later, Wallace was informed that the stake was too close to the property line and would have to be moved. Whited selected a new well drilling site approximately 150 feet away from the original and staked it. Wallace arrived on 15 September 2006 to erect the drilling rig and began drilling the next day. By 17 September, Respondent had drilled to a depth of 900 feet and not hit water. At this point, Dayton ordered Respondent to stop drilling and plan to move to another location to drill. Respondent charged $12,054.45 for drilling the well. The second well was not ultimately drilled by Respondent. It was drilled by another company at a site on the back side of the house, down a hill and in a meadow. Water was struck in the second well at a depth of 450 feet. Complainant complains that the well Respondent dug on her property did not produce water, and that Respondent should have known to locate the well in the meadow behind the house where other homeowners had dug water-producing wells. 3. The contract between Respondent and American Made Construction states in paragraph 1: “Customer represents and warrants to B&M Well Drillers, Inc that the well and jobsite has been approved by customer, that the well and jobsite is on property owned by the customer….”. Paragraph 2 states: “Customer understands and agrees that B&M Well Drillers, Inc. makes no guarantee regarding the quality or quantity of water produced as a result of drilling or the future production of the water well.” 4. Respondent was not aware of the precise property boundaries of the parcel owned by Complainant, as neither Dayton nor Whited ever advised him of them, nor were there any boundary stakes posted on the parcel at the time of well site selection and drilling. Respondent was not aware that Complainant owned part of the meadow behind the house where the second well struck water.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A). The contract in this case clearly states that the Respondent did not guarantee water to be produced by the well that was drilled. There is no evidence that the well was drilled in violation of any building codes, or in violation of any plans or specification provided to Respondent. The well was drilled in the location selected by the agent of the person with whom Respondent contracted, in accordance with the contract. The fact that no water was produced by the well cannot be attributed to the Respondent, as Respondent never guaranteed the production of water or contracted to produce water. He was simply contracted to drill a hole in the ground, which he did.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. 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, April 19, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

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

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

By ___________________________ -----------------------

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