ALJDEC decisions subject to certification as final

07F-L0318-ROC · Registrar of Contractors · 2008-01-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19 and December 13, 2007 APPEARANCES: Complainant: Charlotte Riley appeared at both hearings, pro per. Respondent: William Leroy Hickman, owner and qualifying party, appeared at both hearings, pro per. Registrar of Contractors: Inspector Cliff Corlett appeared on behalf of the Registrar of Contractors at the September 19, 2007 hearing. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter initially convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated August 16, 2007. The parties did not conclude the presentation of evidence in the allotted time and the matter was set for further hearing on December 13, 2007. 2. Complainants Robert and Charlotte Riley (“Complainants”) are the owners of a residence located at 1625 Luna Media, Fort Mohave, Arizona (“premises/project”). 3. Respondent William Leroy Hickman (“Hickman”) is an individual doing business as Sewer Septic & Grease Solutions (“Respondent”). Hickman holds and is the qualifying party for Arizona Contractor’s License No. 133770, Class C-41 (Residential Sewage Treatment Systems) issued by the Registrar of Contractors (“ROC”) on May 8, 1998. A review of the licensing database maintained by the ROC indicates that this license was suspended June 1 -14, 2004 and June 1 through December 4, 2006 for non-renewal. 4. Complainants filed a complaint with the ROC on January 5, 2007 wherein they alleged, inter alia, that contracted with Respondent “to install an access and drain out the septic tank,” infuse a “solution” into the leach lines to remedy the clogs and, ultimately, install new leach lines due to the failure of the solution to cure the clog. Complainants further alleged that Respondent’s work caused their septic system to back up into the premises on two occasions, December 24, 2006 and January 4, 2006 [sic] which resulted in damage to their carpeting and a “kitchen line.” 5. Registrar of Contractors Inspector Cliff Corlett (“Corlett”) conducted a jobsite inspection on January 8, 2007 and issued a Corrective Work Order on January 11, 2007 which required Respondent to “determine cause and correct by appropriate methods” the “repair of septic system to opperational [sic] condition, with a one year warranty. No leaks. (No leaks were noted at inspection)” 6. On April 17, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. L07-0318 charging Respondent with possible violations of A.R.S. §32-1154A 2, 7, 15, 18, 23, 13 (namely, A.R.S. §32-1124(B)) and 3 (namely, A.A.C. R4-9-108, the workmanship rule). 7. Respondent filed an answer on April 30, 2007 wherein he asserted, inter alia, that “(1) The system had leaks, the water bills will show this. Plumbing problems ruin our work & void the warranty. ie: invoice” (2) the customer denies that there was a faulty toilet causing the leak. The water bill will show 3-4 month period of high water bills which intern [sic] ruined our work & warranty” and, (3) disputed the amount of the contract. 8. At the hearing, Complainant Charlotte Riley (“Riley”) testified and submitted Exhibits C-1 through C-8, C-12 through C-17, C-19 through C- 22, C-24 and C-26 through C-33 which were marked, admitted and considered. Daniel Tilton (“Tilton”), Walt Zingelwitz (“Zingelwitz”) and Christine Hurrey (“Hurrey”) also testified on behalf of Complainant. 9. Hickman testified on behalf of Respondent but submitted no exhibits. Rayne Gurr (“Gurr”) also testified on behalf of Respondent. 10. Inspector Corlett testified on behalf of the Registrar of Contractors and described his observations and conclusions regarding his January 8, 2007 jobsite inspection. 11. On or about July 12, 2006, the parties entered into an agreement (“agreement”) represented by Respondent’s Invoice 2151 whereby Respondent was to “repair septic system…to operational condition, palm tree removed, 1 yr. warranty on leach, no leaks!” (Exhibit C-18) The agreement also provided that Complainant paid $400.00 cash and was to pay $800.00 on completion. 12. On July 12, 2006, Respondent placed a chemical solution into the Complainants’ septic system which was intended to clean any blockages in the septic system, leach lines and leach field. After two days, Respondent returned to the project and determined that the chemical solution did not perform as intended and that additional work would have to be done. 13. After Respondent completed the work on July 14, 2006, a dispute arose regarding the lack of a clean out “access”. Complainant asserted that such access was to be included in the agreement and was not. That day, Respondent, by and through his son, Gurr, agreed to install the access at a later time and gave Complainants a $200.00 discount for its failure to initially install the access which would be exposed at no charge. (Exhibit C-18) 14. Complainants paid Respondent in full for all septic work done. (Exhibit C-18) 15. On December 24, 2006, Complainants’ septic system backed up into their home through toilets, showers and bathtubs causing, inter alia, water and waste damage to the master bathroom carpet. Hurrey, Complainants’ daughter, testified that a hose under the kitchen sink began leaking because of pressure back up from the non-functioning septic system. 16. Hurry further testified that her father, Bob, called Respondent on December 24, 2006 to advise of the septic system back up and was advised that Respondent was going to do no more work on the project and not honor the one year warranty because the premises were full of leaks. 17. The septic system again overflowed on January 4, 2007. 18. Due to Respondent’s statement that it would not return to the premises until after January 1, 2007, Complainants contacted a plumber, Action One Plumbing, to run a snake down the main sewer line to determine the problem at a cost of $125.00. (Exhibit C-26) 19. Complainants also engaged the services of Daniell’s Septic, Portable Toliets, Drain, Inc. (“Daniell’s) to inspect the septic system due to the overflowing. (Exhibit C-33) 20. Complainants also hired Hound Dog Excavation to perform work on the leach field which included extending the leach field. (Exhibit C-29) 21. At his January 8, 2007 jobsite inspection Inspector Corlett determined that the premises’ septic system was backed up and reportedly not operational though he found no plumbing leaks. 22. Complainants contend that they have had no further problems with the septic system after Daniell’s performed remedial work thereon. 23. Gurr testified that it was Respondent’s obligation to expose tank to see if inlet and outlets were in correct operation. Gurr further testified that Respondent properly performed all work required under the parties’ agreement and that because Complainants’ plumbing system has leaks which saturate the leach field, Respondent couldn’t fix the septic system as there is no opportunity for the system to absorb moisture. 24. Gurr also testified that upon inspection he found a leak at the toilet and then took water meter readings which indicated excessive water use which denoted the presence of leaks which voided warranty. 25. Gurr related that to perform its initial work, Respondent had to remove a palm tree which was growing over the septic tank. 26. Respondent’s License No. 133770 was suspended for non-renewal at the time Respondent performed his work on the premises. (Exhibit C-8) 27. Respondent did not secure a permit to perform the required work on the septic system. 28. Complainants assert that they incurred costs of $4,490.57 to repair the septic system and premises due to Respondent’s actions and/or inaction under the agreement. (Exhibits C-17, C-19, C-21, C-26, C-27, C-29, C-30, C-31 and C-32)

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. L07-0318 charged Respondent with possible violations of A.R.S. §32- 1154A 2, 7, 10, 13 (specifically A.R.S. §32-1124(B)), 18, 23 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect.

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. …

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.

… 13. Failure in any material respect to comply with the provisions of this chapter. …

18. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

…

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article. … 3. Violation of any rule adopted by the Registrar.

A.R.S. §32-1124(B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business. A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (2) when it failed to secure the proper permit to perform work on the premises’ septic system. Complainants provided no adequate evidence of plans, specifications and/or applicable code provision from which this tribunal could determine that Respondent failed to comply as pertain to any other item set forth in the complaint and/or the Corrective Work Order. 5. It is further determined and concluded that Complainants did not establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) by failing to comply with the item set forth in the subject Corrective Work Order. Though a factual issue exists regarding Respondent’s obligation to perform any corrective work, due to Respondent’s refusal to immediately and necessarily attend to the subject septic system problem after the first system back up, Complainants secured the services of other contractors to remedy the septic system problems before issuance of Inspector Corlett’s Corrective Work Order. 6. It is also determined and concluded that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108 by failing to perform work on the Complainants’ septic system, leach lines and leach field in a workmanlike manner which caused Complainants to incur repair costs of not less than $3,929.14. 7. This tribunal further determines and concludes that Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (18) when it contracted to perform work on the subject premises while its license was suspended. 8. This tribunal determines and concludes that based on the violations set forth in Conclusions of Law 4, 6 and 7 above, Complainants established by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7), as charged in the issued Citation in Case No. L07-0318. 9. This tribunal further determines and concludes that Complainants failed to establish by the weight of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A 13 and 15.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing thirty (30) days from the effective date of the Registrar’s Order entered in this matter, the Class C-41 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has remitted to Complainants a sum not less than $3,929.14 as restitution for repair costs as set forth in Conclusion of Law 6. IT IS FURTHER RECOMMENDED that if Respondent remits the above- referenced sum to Complainants within the requisite period, Respondent’s Class C-41 license shall nonetheless be suspended for a period of fourteen (14) days beginning as of the date of payment. IT IS FURTHER RECOMMENDED that Respondent’s Class C-41 license be placed on probation for a period of sixty (60) days commencing at the conclusion of the above-referenced fourteen (14) day suspension.[1] Done this day, January 2, 2008.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

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

By ___________________________ ----------------------- [1] 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.

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