ALJDEC decisions subject to certification as final

2010A-308473742-ROC · Registrar of Contractors · 2011-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2011 APPEARANCES: Eric Hawkins, Esq. represented Complainant Anthony Kumar. Maya Kashak, Esq. represented Respondent Edward Claude Lopez, doing business as F.W. Ganz Plumbing and Heating. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Edward Claude Lopez, doing business as F.W. Ganz Plumbing and Heating (“Ganz”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Ganz is the holder of a Class K-37 license (No. 180664) issued by the Registrar of Contractors (“ROC”). Edward Claude Lopez is the owner of Ganz and its qualifying party. 2. Complainant Anthony Kumar and his wife, Michelle Kumar, purchased their home in December 2009, closed escrow in May 2010, and moved into the home on May 11, 2010. The Kumars purchased the home in its framing stage after it had been abandoned by the original general contractor, Presidio Nuevo (“Presidio”), due to Presidio’s experiencing financial difficulties resulting in its inability to complete the construction of the home. Ganz was the original plumbing subcontractor. Ganz’s work was approved by Pima County. The house sat incomplete and vacant for years until the Kumars purchased it. The Kumars purchased the home “as is.” Mr. Kumar testified that it took approximately six months to complete construction of the home, and prior to purchasing it, he only had his general contractor, Niles Custom Homes (“Niles”), inspect the home, and that the inspection was not “detailed.” The Kumars have had landscaping performed and pavers installed in the driveway. 3. Immediately upon moving into the home, the Kumars recognized that an issue with the plumbing existed. The first time they flushed the toilet in the powder room, they heard a “gurgling” noise emanating from the kitchen sink, and when they flushed the master toilet, they heard a “gurgling” noise emanating from the master bathtub. The Kumars contacted Niles to complain about the plumbing noise. Niles contacted a plumbing subcontractor, J & L Plumbing (“J & L”), to perform an inspection. J & L could not determine the cause of the “gurgling” noise. J & L recommended that the Kumars hire a contractor that could utilize a camera to inspect the plumbing system. 4. The Kumars hired Abacus Plumbing (“Abacus”). On August 30, 2010, Abacus inspected the sewer line with a camera. Abacus determined that the sewer line has a “back-pitch.” See Exhibit C-1. 5. On June 11, 2010, Mr. Kumar filed a complaint against Ganz with the ROC alleging, “back pitch plumbing problem.” 6. ROC Inspector Frank Grochocki investigated Mr. Kumar’s complaint. 7. On July 14, 2010, Inspector Grochocki conducted a jobsite inspection.

8. On July 16, 2010, following the jobsite inspection, Inspector Grochocki issued a letter advising the parties in pertinent part, “[J]obsite inspection could not determine condition or workmanship of underground plumbing, other contractors performed work after plumbing work was approved by Pima County, no action required of this contractor.” 9. Inspector Grochocki testified that because the plumbing was not exposed, he could not perform a visual inspection of the plumbing. However, even if the plumbing had been exposed, Inspector Grochocki testified that other plumbing contractors performed work after the county had performed its inspection of and approved Ganz’s work, and therefore, he could not make a determination as to the condition of the pipe. 10. At hearing, Mr. Kumar called Robert Bryant as an expert witness. Mr. Bryant has been a licensed plumbing contractor for five years and has been in the plumbing industry for twenty years. Mr. Bryant testified that after conducting an inspection with an underwater camera, he determined that there is a back pitch from the middle of the home to the West side of the home, and the only way to correct the situation is to “re-do it” at a cost of $25,000.00, which does not include the replacement of tile that would need to be removed. Mr. Bryant testified that the rough plumbing was not installed per plan. Mr. Bryant further testified that the plumbing in the Kumar house is backed up from the family room to the master bedroom. Mr. Bryant testified that in an eighty foot run, the pitch drops twenty seven inches, and that it is inconceivable for a pitch to move that amount without breaking pipe. Mr. Bryant acknowledged that Pima County inspected Ganz’s work, including the pitch and the fittings, and the work passed inspection. Mr. Bryant further acknowledged that he did not observe Ganz’s work prior to the trenches being back filled and the pad being laid. The evidence of record established that the trenches containing the pipes had been left open and exposed to the elements for at least one month prior to being backfilled. The parties did not dispute that back filling the trenches was not included in Ganz’s scope of work, and therefore, not Ganz’s responsibility, but rather the responsibility of Presidio. Mr. Bryant acknowledged that he could not rule out the possibility that “something could have happened” to Ganz’s work during the month the trenches were left open. 11. Mr. Lopez testified that he has been a licensed plumbing contractor for approximately six or seven years, and has been in the plumbing industry for thirty years. Mr. Lopez testified that Ganz contracted with Presidio to perform the plumbing work for the house. However, upon completion of the rough plumbing phase, in approximately May 2007, Presidio experienced financial difficulties and could no longer afford to complete construction of the home, at which time Presidio terminated Ganz. Mr. Lopez testified that Ganz’s work on the rough plumbing passed inspection on May 18, 2007. See also Exhibits C-14 and R-2. Mr. Lopez credibly testified that Ganz was not responsible under the terms of its contract with Presidio to dig the trenches, for grading, or for back filling the trenches. Mr. Lopez credibly testified that Ganz ensured the pitch was proper and that there could not have been a back pitch problem at the time Ganz completed its work because the work would not have passed inspection if such a problem existed. Mr. Lopez testified that inspectors specifically inspect for pitch, pipe installation, leaks, and fittings. Mr. Lopez testified regarding the method Ganz utilized for installing the pipes, including securing them to rebar and properly shading them so that they remained stable. Mr. Lopez testified that the rough plumbing was under test for twenty-four hours prior to inspection and there were no problems. 12. Mr. Lopez testified that several months after its termination, Presidio requested that Ganz return to the project to hook up the sewer line to the street. Mr. Lopez testified that he advised Presidio’s representative that the plans called for a septic tank. However, Presidio’s representative instructed Ganz to connect the sewer line to the street. Ganz proceeded to install clean outs and perform some “intermediate” work. On August 27, 2008, the house-sewer connection passed inspection. See Exhibits C-10 and R-2. However, once again, Presidio terminated Ganz due to financial difficulties. Mr. Lopez credibly testified that when he returned to the property for the ROC inspection after Mr. Kumar filed his complaint, the clean outs had been removed and replaced by pavers. 13. Jesus Ochoa, a plumber and employee of Ganz who worked on and supervised the project, testified that Ganz did not dig the trenches and was not responsible for any excavation. Ganz was responsible for installing the pipes in the trenches. Mr. Ochoa testified that he checked the pitch, filled the pipes with water and checked for leaks, and shaded the pipes. Mr. Ochoa testified that Ganz brought in sand to perform the shading because the dirt on property was comprised of too much rock, and he did not want to chance shading the pipes with rocky dirt for fear that the rocks might damage or puncture the pipes. Mr. Ochoa also installed the fittings. Mr. Ochoa testified that there were no problems with pitch or fittings at the time of installation, and that had problems existed, the work would not have passed inspection. 14. The Administrative Law Judge finds, based upon the credible evidence of record, that Mr. Kumar failed to present probative or substantial evidence that the back pitch was attributable to work performed by Ganz rather than an intervening, unknown cause. The evidence of record established that Ganz’s work passed inspection. Subsequent to passing inspection, Ganz’s work was left exposed to the elements for a considerable amount of time by Presidio, as Ganz had no responsibility for back filling the trenches. The house stood incomplete and exposed to the elements for years prior to Mr. Kumar purchasing the house and completing construction. Further, Mr. Kumar acknowledged that he only had the home inspected by his general contractor prior to purchase and that the inspection was not thorough. CONCLUSIONS OF LAW In this proceeding, Mr. Kumar bears the burden to prove, by a preponderance of the evidence, that Ganz is subject to discipline for violations of A.R.S. § 32-1154(A)(3) as charged by the ROC in its October 6, 2010 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Kumar failed to meet his burden of proof as to the ROC’s charge. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Ganz with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible, probative, and substantial evidence of record failed to establish that Ganz failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Ganz is not in violation of A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the evidence of record, that no grounds exist to impose discipline against Ganz’s license. The ROC’s Citation in Case Number 2010-[number redacted], and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Ganz’s license, and that the Citation issued in Case Number 2010-[number redacted], 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 will be 40 days from the date of that certification.

Done this day, March 22, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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