ALJDEC decisions subject to certification as final

2011A-4003-ROC · Registrar of Contractors · 2013-01-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2013, at 8:00 a.m. APPEARANCES: Tina Jarvis (hereinafter “Complainant”) appeared on her own behalf. Cummings Plumbing Inc (hereinafter “Cummings”) appeared through its attorney, Sally M. Darcy, Esq., of McEvoy, Daniels & Darcy P.C. An ASL interpreter was present for the hearing via video conference. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Cummings is the holder of License No. C37R.113429-R issued by the Registrar of Contractors. 2. This is a residential matter where on or about July 28, 2010, Cummings utilized a plumber’s metal snake to unplug a drain in a condominium next to Complainant’s condominium located at 6301 N. Barcelona Court 1002, Tucson, Arizona 85704. In October 2010, Complainant was notified that there had been a plumbing leak in her condominium that had caused significant water damage to her residence. Complainant had moved to Iowa in June 2010, and no one was living in the condominium. Complainant asserted that Cummings had caused the water leak in her condominium and demanded that Cummings reimburse her for her costs of repairing the water damage to her condominium. 3. When Cummings denied any responsibility for Complainant’s plumbing leak and refused to pay her any money, Complainant filed a formal Complaint against Cummings with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted an onsite inspection. 5. Inspector Allen issued a letter on August 17, 2011, informing the parties that the jobsite inspection found insufficient evidence that Cummings caused the damage in Complainant’s condominium and that no action was required by Cummings. 6. Complainant disagreed with Inspector Allen’s determination and requested an administrative hearing. 7. Inspector Allen testified that he performed an onsite inspection at Complainant’s condominium on August 17, 2011. Inspector Allen stated that Complainant’s condominium shares a drain with the neighboring condominium. Inspector Allen testified that the two condominiums share a double directional ABS fitting for each sink drain. Inspector Allen stated that it was “highly unlikely” that the plumber’s snake utilized by Cummings in the neighboring condominium could have found its way into the sink trap that was leaking in Complainant’s condominium because of the configuration of the fittings. Inspector Allen testified that he could not determine who or what caused the damage to Complainant’s drain.[1] 8. Inspector Allen’s testimony is found to be credible. 9. Complainant’s friend, Joy A. Saunders (hereinafter “Ms. Saunders”), testified that she was shocked by the water damage in Complainant’s residence. Ms. Saunders stated that she observed the box under the drain pipe. Ms. Saunders testified that she saw no water under Complainant’s sink. Ms. Saunders stated that when she checked Complainant’s condominium, everything was fine. Ms. Saunders stated that she did not remember the date that she was in Complainant’s condominium.[2] 10. Complainant testified that she moved to Iowa and that no one lived in her condominium between June 2010, and October 2010. Complainant stated that she believed that Cummings’ attempt to unplug her neighbor’s drain on July 28, 2010, caused the damage to the drain in her bathroom. Complainant testified that the damaged drain flooded her condominium, causing extensive water and mold damage. Complainant stated that she strongly believed that Cummings caused the damage to her drain. Complainant testified that she has incurred more than $14,000.00 in mold and water damage to her residence, as well as two years of lost rent for the condominium. Complainant stated that the bucket under the drain pipe in her condominium was for holding cleaning supplies. Complainant acknowledged that she had experienced similar types of flooding problems in 2004 and in 2007 in her condominium.[3] 11. Cummings’ vice-president, Leroy Johnson (hereinafter “Mr. Johnson”), testified that he had 27 years of experience as a plumber. Mr. Johnson opined that it would not have been possible for a metal snake to go down the drain in the neighbor’s condominium and then go up and punch through the drain in Complainant’s condominium. Mr. Johnson stated that the punctured pipe in Complainant’s condominium was a drain pipe and that it would only have water in the drain if there had been either a stoppage in the drain pipe or a leak from the sink over the drain pipe. Mr. Johnson testified that Cummings did not cause any damage in Complainant’s condominium and was not responsible for the water and mold damage in Complainant’s condominium.[4] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Complainant’s condominium was unoccupied from June 2010, through October 2010. Cummings removed a blockage from the neighboring condominium on July 28, 2010. There was no credible evidence that Cummings damaged the drain in Complainant’s condominium when it performed plumbing work in the neighboring condominium. This Tribunal concludes that Complainant failed to meet her burden of proof to establish that Cummings violated the charged provision of A.R.S. § 32-1154(A)(3),[5] namely, A.A.C. R4-9- 108.[6] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, be dismissed. In the event of certification of this 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 the certification.

Done this day, January 18, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/8/13 Hearing Record (Hereinafter “H.R.”) at 44:09-1:03:23. [2] H.R. at 1:04:13-1:09:18. [3] H.R. at 1:09:50-1:31:08. [4] H.R. at 1:33:50-1:56:28. [5] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [6] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

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