ALJDEC decisions subject to certification as final

07F-H0217-ROC · Registrar of Contractors · 2007-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2007 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Leo Drake (‘Drake”). 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 verbal agreement, Respondent was retained by Complainant to perform a percolation (“perc”) test for the installation of a septic system for Complainant’s new home construction project.

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

a. Complainant testified that he had his initial meeting with Respondent on or about March 2005. At that time he showed Drake where the house was going to be placed and the well for the property. b. It was undisputed that there was a lot of rain during the winter of 2004 through early spring 2005. At the initial meeting the parties discussed the set back requirements for the system and where Complainant wanted the system located. Respondent suggest a likely location and Complainant approved having the perc test performed in said area. At the time of the initial meeting, neither party had any knowledge that there were underground water issues in the area in question. c. On or about May 22, 2005, Respondent performed the perc test and Drake testified that at 8 ½ feet he found ground water in the area wherein the perc test was performed. Based on this finding, he advised Complainant that he could not install a conventional septic system with a leach line in the area of the perc test but an alternative system could be utilized. Drake further advised that he does not install alternative systems and thus, Complainant would have to hire another contractor for such a system in the location in question. d. Evidence of record showed that Complainant paid Respondent $500.00 for the perc test. e. Notwithstanding the advice from Drake, Complainant submitted the perc test results (document) to the county and the building authority initially issued a permit for the construction of a conventional system. Evidence of record showed that the perc test in question indicated that ground water was discovered at 8 ½ feet. Thus, it was not clear why the building authority issued the permit for a conventional system. Nevertheless, this error was eventually caught by the building authority and the permit was revoked after Complainant had paid $300.00 for said permit. f. Complainant claims entitlement to a refund of the $500.00 paid to Respondent for the perc test, since it did not provide him with any benefit and also claims entitlement to a refund of the $300.00 for the cancellation of the septic system permit. g. Drake testified that he performed the required perc test, per the contractual agreement between the parties and thus, earned the $500.00. According to Drake, one of the purposes of a perc test is to determine if a conventional septic system is feasible or if an alternative system would be required. In addition, Drake indicated that the performance of a perc test, in and of itself, does not guarantee that a conventional system would work in said area. Nevertheless, if the work is performed, the customer needs to pay for said work. h. Complainant was acting as an owner/builder on this project and admits that he has no prior experience in new home construction. i. Annette Stringer (“Stringer”) appeared as a witness for Respondent. She owns a company that performs onsite soil evaluations for the installation of waste water systems. She was retained by Respondent to perform the perc test in question. j. Stringer testified that the area wherein the perc test was performed was not in a wash and that an alternative system could have been installed in the area where the perc test was performed. She further indicated that someone, probably from the county, crossed out her notes on the perc test, which showed that a conventional system could not be installed in the area wherein the perc test was performed. She has no idea how or why this occurred. k. No one from the building authority appeared at the hearing to contradict the testimony of Drake and Stringer, which showed that an alternative waste water system could have been installed in the area of the perc test. l. At some point in time, the lines of communication and the ability of the parties to work together totally broke down, resulting in Complainant filing the instant Complaint with the Registrar of Contractors.

3. It is determined and held that there are no guarantees that a perc test will show that conventional waste water system can be installed in a given location. The evidence of record showed that Complainant was actively involved in deciding on the location for the perc test. Moreover, there was no showing that Respondent knew or should have known that he was going to find ground water at 8 ½ feet when he performed the perc test work.

4. The facts and circumstances presented herein are inadequate to support a finding that any of the conduct by Respondent rises to the level of a violation of the State’s Contracting laws. Thus, Complainant failed to sustain the requisite burden of proof on the issue set forth in this Complaint.

CONCLUSIONS OF LAW

1. Complainants have 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 (no. H07-0217), 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, August 9, 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