ALJDEC decisions subject to certification as final

08F-2583-ROC · Registrar of Contractors · 2008-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2008

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its member, Clarke Watson (“Watson”). 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 contract, Complainant retained Respondent to install the septic tank and septic lines for his new home construction project. Complainant alleges a certain deficiency in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The work performed by Respondent was completed on or about April 2007. Complainant testified that he moved into the home sometime in November 2007. According to Complainant, within about two (2) weeks of moving into the home, he experienced sewage coming up through the bathroom toilet.

3. According to Complainant, he contacted Respondent regarding the sewage back-up problem and Respondent advised him to retain a plumber to snake-out the sewer line.

4. Complainant testified that the plumber came out and snaked the line and found a blockage which he could not correct with the snake device. Ultimately, the new plumber dug up the septic lines and found a break in a degree section of the septic pipe leading to the septic tank. The break was in a section of the pipe that was glued together.

5. Complainant had the problem repaired and seeks restitution from Respondent for the cost to find the problem and repair same. In this regard, Complainant was charged $1,945.00.

6. Complainant called David Owens (“Owens”), a landscape contractor, as a witness. Owens is a neighbor of Complainant. In the opinion of Owens, the pipe was not properly glued together in this area because a glued section of pipe is actually stronger than the pipe itself.

7. Watson testified that Respondent properly installed the pipe in question and used proper shading in the area. He contends that Complainant was in the home for a longer period of time than two (2) weeks and Complainant’s use, or misuse of the system, could have caused a blockage.

8. Respondent showed evidence that the septic system was inspected and approved by the local building authority prior to backfilling the trenches.

9. Watson opines that the broken line in the system could have been caused by the backhoe, which Complainant’s plumber used to excavate the system.

10. Russ Barnes (“Barnes”), Respondent’s construction foreman appeared at the hearing and presented testimony. Barnes installed the system on Complainant’s property and backfilled the area after receiving approval from the local building authority. According to Barnes, he has never had one of these fittings fail before.

11. It is important to note that during the cross examination of Barnes, Complainant inquired if Barnes knew that Complainant’s plumber had dug up the septic line by hand (instead of a backhoe). Barnes replied that he had no knowledge regarding the method used by Complainant’s plumber to dig up the system and expose the pipe. Watson later pointed out to Complainant that his invoice for the $1,945.00 showed that the system was, in fact, dug out by Complainant’s plumber using a backhoe. Complainant then admitted that he was not present when the plumber was exposing the septic lines.

12. The evidence presented herein showed that neither of the parties was present when the septic system was dug up by Complainant’s plumber and the plumber did not appear at the instant hearing to provide any testimony regarding his remedial work. The opinions of the parties, regarding why there was a break in the septic system plumbing lines, is found to be nothing more than their opinions and neither opinion is found, under all of the facts and circumstances presented herein, to be more persuasive than the other. Complainant has the burden of proof on this issue and it is determined and held that the evidence presented was inadequate to support any finding that there was anything substandard or unacceptable in Respondent’s installation of the septic system for Complainant’s home. Thus, Complainant failed to sustain the requisite burden of proof on this issue.

CONCLUSIONS OF LAW

1. Complainant has 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 (08-2583), 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, December 29, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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