ALJDEC decisions subject to certification as final

2012A-3625-ROC · Registrar of Contractors · 2013-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2013

APPEARANCES: Complainant appeared through corporate President Dan Madison; Respondent failed to appear.

WITNESSES: Jeff Fleetham, ROC Inspector Dan Madison

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent, who was a subcontractor for Complainant, alleging poor workmanship with regard to a well pump installed by Respondent at a residential project for which Complainant is the general contractor. The Citation and Complaint also alleges that Respondent failed to comply with a properly issue Corrective Work Order (“CWO”). Respondent failed to appear and assert a defense. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending revocation. FINDINGS OF FACT 1. Respondent is the holder of License No: K-53.235645-D, a dual specialty contracting license issued by the Registrar. The license authorizes Respondent to drill water wells. Martin John Craven, Jr. is the Qualifying Party on the license. 2. After Complainant filed an ROC complaint about Respondent’s installation of a well pump system as noted above, ROC Inspector Jeff Fleetham inspected the work on August 9, 2012 and issued a CWO dated August 20, 2012 with the following findings and directives: 1. Well pump system causes interference with other electrical devices in house. The problem was identified as 11 volts on the ground which is a short. Arizona H20 Monsoon was notified of the problem on 01/31/2012. On 03/18/2012 Subcontractor provided a filter on the load side and the problem was minimized but not totally corrected. Performance was adequate after the filter was installed until after the well pit flooded. • Pump not connected at time of inspection. • No deficiency demonstrated or observed at time of inspection.

2. The well pump pit flooded causing electrical controllers in well pump system to short out. Cause of problem unknown but Marty Craven of Arizona H20 Monsoon said at the time that one of their pipes broke. On May 24, 2012 we were verbally notified by the subcontractor that well pump pit flooded a second time placing controllers and filter under water a second time. Cause of second flooding unknown. Pump is currently not operating due to faulty equipment and non-completion of repairs by subcontractor.

a. Pump not connected at time of inspection. Repairs not complete b. Respondent shall complete repairs by appropriate means.[1]

3. At the hearing, Inspector Fleetham described the above findings. He testified that he performed a pre-hearing inspection on January 7, 2013, and found the pump system still in need of repairs. Inspector Fleetham spoke with Respondent’s Qualifying Party Martin Craven by telephone on January 7, 2013, and Craven told the Inspector that he is out of state and that the Respondent business is closed and will not be participating in the process. His words to Inspector Fleetham were that he was “letting the company go.” 4. The Administrative Law Judge finds that the repairs at issue are unfinished and that there is no evidence that Respondent is going to do them. 5. Complainant did not present evidence that would show the cost for having the repairs made by another contractor. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent has not met workmanship standards and did not comply with the CWO. 4. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on January 28, 2013. That prior record shows that Respondent has held the license since July 2007 and has not had any disciplinary actions. This is a good record. 5. However, Respondent has not taken responsibility for this work and has essentially abandoned the project, even though a CWO has been issued that orders repairs. Such willful failure to cooperate with the complaint process shows that Respondent is not able to be regulated by the ROC. Therefore, the only discipline that will protect the public is revocation. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that License No: K- 53.235645-D held by Respondent Arizona Monsoon H2O, Inc. be revoked.

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, January 28, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Formatting unchanged from original. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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