ALJDEC decisions subject to certification as final

2012A-4188-ROC · Registrar of Contractors · 2013-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2013, at 8:00 a.m. APPEARANCES: Michael John Taylor (“Complainant”) appeared on his own behalf. B and M Excavating and Hauling Inc. (“Respondent” or “B and M”) was represented by Eric Hawkins, Esq., Durazzo, Eckel & Hawkins, P.C. 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. B and M is the holder of License No. B.174509-R issued by the Registrar of Contractors. 2. This is a residential matter where B and M agreed to remove a portion of Complainant’s sewer line where “it looped around a tree” for the sum of $600.00.[1] 3. Complainant was dissatisfied with B and M’s workmanship and contacted the Registrar of Contractors. Complainant then contacted B and M and attempted to resolve the matter. After the parties were unable to resolve their differences, Complainant retained an alternative replacement contractor, Spartan Plumbing Inc. (hereinafter “Spartan Plumbing”),[2] to perform construction work on his sewer line. Complainant then filed a formal Complaint against B and M with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, the Registrar of Contractors issued a Citation and Complaint charging B and M with a possible violation of A.R.S. § 32-1154(A)(1).[3] 5. Complainant testified that he had a previous contractor[4] clean out his sewer line “months prior” to his contract with B and M. Complainant stated that the previous contractor had performed a camera inspection of his sewer line. Complainant stated that he discussed the camera inspection performed by the previous contractor with B and M before B and M began its construction work. 6. Complainant testified that the previous contractor ran a “router” through the sewer line and cleaned out the line. Complainant stated that he informed B and M that a previous contractor had visually observed that the sewer line was “free and clear.” Complainant testified that he informed B and M about the location of his sewer line based on the information that was provided to him by the previous contractor. 7. Complainant testified that the parties mutually agreed that the sewer line was generally located near the tree and that the tree roots were intruding into the sewer line based on the previous contractor’s camera work. Complainant stated that the scope of the work to be performed by B and M was set forth in “vague terms” in B and M’s bid for the construction project.[5] Complainant testified that he had asked B and M’s representative to insert a camera in Complainant’s sewer line to find the blockage in the sewer line. 8. Complainant testified that B and M’s representative informed him that B and M did not have a camera to insert in the Complainant’s sewer line. Complainant acknowledged that B and M did not contract to perform any camera work at his residence. 9. Complainant testified that his sewer system was in working condition before B and M started construction work at his residence. Complainant stated that B and M disconnected his sewer line allowing sewage to pool near Complainant’s front door. Complainant testified that B and M failed to blue-stake his property. 10. Complainant testified that B and M cut Complainant’s Comcast cable and damaged the city water line. Complainant acknowledged that B and M had paid the City of Oro Valley for all of the damage that B and M caused to the City’s water line. 11. Complainant testified that B and M failed to obtain a required construction permit and that B and M misrepresented the status of B and M’s business license. Complainant acknowledged that B and M had several valid business licenses. 12. Complainant testified that on June 14, 2012, B and M’s representative informed Complainant that it would not be performing any further work at Complainant’s residence and that Complainant would not have to pay B and M for the construction work performed by B and M. Complainant stated that B and M never found the real problem in Complainant’s sewer line. 13. Complainant testified that B and M severely damaged Complainant’s front yard. Complainant stated that B and M left his residence without notice. Complainant stated that his sewer line was inoperable when B and M abandoned the work at his residence. Complainant testified that B and M filled approximately fifteen feet of his sewer line with dirt while it was performing work on his sewer line. 14. Complainant testified that Spartan Plumbing charged him $6,673.42 to correct Complainant’s sewer line. Complainant stated that all of the construction work performed by Spartan Plumbing was solely to correct the damage that B and M had caused to his sewer line. Complainant testified that he wanted B and M to reimburse him for his monetary damages. 15. Complainant testified that B and M abandoned the construction project because B and M knew that it had caused extensive damage to Complainant’s property and wanted to get away from the problem before Complainant discovered the extent of the damages. 16. Complainant testified that Pima County discovered that the root intrusion in Complainant’s sewer line was at the junction of the main sewer line. Complainant stated that Pima County corrected the root intrusion problem in the sewer line without direct cost to Complainant. Complainant testified that the actual root intrusion in the junction of the main sewer line was approximately thirty feet from the area where B and M performed construction work. 17. Complainant testified that B and M performed construction work on his property on June 11 and June 12, 2012. Complainant stated that B and M performed no work on June 13, 2012, and that B and M left the construction project on June 14, 2013. 18. Complainant acknowledged that his telephone records show that he had a conversation with someone from B and M in the evening of June 12, 2012.[6] Complainant testified that he “assumed” that he had a telephone conversation with Marylyn Saran in the evening of June 12, 2012. Complainant stated that the parties discussed the additional work that had been performed by B and M. 19. Complainant testified that on June 12, 2012, he agreed to pay B and M the sum $1,000.00 for all of the work performed by B and M at his residence. Complainant stated that Terry Saran and “Phil” arrived at his residence on June 14, 2012, in a truck and that “large” equipment was loaded on their truck. 20. Complainant testified that on June 14, 2012, he agreed with Terry Saran that Complainant would not pay any money to B and M for the work that had been performed at Complainant’s residence and that Complainant would use his money to pay another contractor to complete repairs to Complainant’s sewer line. Complainant stated that he “shook hands” with Terry Saran on the agreement.[7] 21. B and M’s corporate officer, Jason Scott Saran (hereinafter “J. Saran”), testified that Complainant contacted B and M during May 2012. J. Saran stated that he “walked the property” with Complainant before the construction project commenced. J. Saran testified that the parties discussed a possible correction of the problem with Complainant’s sewer line. J. Saran stated that the discussion was based upon Complainant’s representation that the Complainant had previously identified the problem with his sewer line. 22. J. Saran testified that the scope of the construction project was for B and M to install a small amount of 3” ABS pipe in Complainant’s yard. J. Saran stated that that Complainant did not want B and M to perform an investigation to determine the cause of the sewer problem. J. Saran testified that Complainant informed B and M that Complainant knew what the problem with his sewer line was. 23. J. Saran reviewed Spartan Plumbing’s bid and invoice[8] and testified that the replacement contractor found that the blockage in Complainant’s sewer line was at the at the point of exit in the sewer main. J. Saran stated that the blockage was at least thirty feet from where B and M performed work. J. Saran testified that B and M did not abandon the construction project or threaten to do so. 24. B and M’s Qualifying Party, Terry Lee Saran (hereinafter “Mr. Saran”), testified that he is J. Saran’s father. Mr. Saran stated that at the start of the construction project, Complainant told him where to dig. Mr. Saran testified that B and M is dependent on the homeowner to determine where to perform excavation work. 25. Mr. Saran testified that on the morning of June 14, 2012, he arrived at Complainant’s residence to perform additional construction work on Complainant’s sewer line. Mr. Saran stated that there was an uncomfortable relationship between B and M and Complainant. 26. Mr. Saran testified that Complainant met him at the door. Mr. Saran stated that he then had a discussion with Complainant. Mr. Saran testified that he suggested that the parties enter into an agreement whereby Complainant could keep his money and then have his sewer line repaired by another company. Mr. Saran stated that Complainant accepted the offer and that they “shook hands” on the agreement. Mr. Saran testified that B and M was willing and ready to continue working at Complainant’s residence if an agreement had not been reached. 27. Mr. Saran testified that he had approximately forty years of construction experience. Mr. Saran stated that the responsibility for calling for blue-staking was dependant on the construction agreement between the parties. Mr. Saran testified that he knew that blue-staking should be performed before any digging takes place. Mr. Saran acknowledged that B and M did not perform blue-staking on Complainant’s project. 28. Mr. Saran acknowledged that B and M damaged the City of Oro Valley’s water line. Mr. Saran testified that he notified the City of Oro Valley of the damage to the water line. Mr. Saran stated that B and M paid for the damage that it caused to the City’s water main. 29. Mr. Saran testified that B and M performed a water test on Complainant’s sewer line on June 12, 2012. Mr. Saran stated that he could not remember if the sewer line was working on June 12, 2012. Mr. Saran testified that on June 12, 2012, he informed Complainant that B and M could not perform all of the work required to correct Complainant’s sewer line for the “minimal” amount set forth in B and M’s original bid.

30. Mr. Saran testified that he informed Complainant that all B and M could do for the amount of money in the bid was to re-route a portion of the sewer line. Mr. Saran acknowledged that he observed that Complainant’s sewer line was not working properly on June 14, 2012. 31. Phillip Spencer Lee (hereinafter “Mr. Lee”) testified that he is an employee of B and M. Mr. Lee stated that he performed work at Complainant’s residence. Mr. Lee stated that he started work at Complainant’s residence on June 11, 2012. Mr. Lee testified that when he left the construction project on June 12, 2012, there was no visible sewage on Complainant’s property. 32. Mr. Lee testified that he accompanied Mr. Saran to Complainant’s property on June, 14, 2013. Mr. Lee stated that he witnessed the agreement between Mr. Saran and Complainant. Mr. Lee testified that Mr. Saran’s description of the agreement was accurate. 33. Mr. Lee testified that he observed Mr. Saran and Complainant shaking hands on the agreement. Mr. Lee stated that he saw sewage in Complainant’s yard on June 14, 2012. 34. Mr. Lee testified that he heard Mr. Saran and Complainant discuss the visible sewage and the construction work that would be required to correct the problem. Mr. Lee stated that Complainant and Mr. Saran were unable to reach an agreement on the cost of the additional work that would have to be performed to correct the sewage problem. Mr. Lee testified that Mr. Saran and Complainant then agreed that Complainant would not pay B and M for the work that had been completed by B and M and that the parties would go their separate ways. Mr. Lee stated that he was close enough to hear the terms of the agreement between the parties. Mr. Lee testified that the conversation about the additional construction work that would be required to correct the sewage problem at Complainant’s property occurred before Mr. Saran and Complainant reached an agreement. 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. A.R.S. § 32-1155(C) provides, in relevant part, as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use. 4. B and M’s construction work at Complainant’s residence was modified by another licensed contractor before an assigned Registrar Inspector could perform an onsite inspection at Complainant’s residence. B and M was not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the Registrar of Contractors. Accordingly, the Registrar of Contractors did not issue a citation against B and M for its alleged failure to perform work in a professional and workmanlike manner. 5. Complainant testified that on June 14, 2012, he agreed with B and M that he would not pay any money to B and M for the work that it had performed at his residence and that he could use his money to pay another contractor to complete repairs to his sewer line. Complainant stated that he “shook hands” with Mr. Saran on the agreement. B and M agreed that the parties had entered into am agreement. B and M was willing and ready to continue working at Complainant’s residence if an agreement had not been reached. Complainant failed to meet his burden of proving by a preponderance of the evidence that B and M abandoned Complainant’s construction project or refused to perform without legal excuse for the refusal. This Tribunal concludes that Complainant failed to sustain his burden of proving, by a preponderance of the evidence, that B and M violated the charged provision of A.R.S. § 32-1154(A)(1). 6. Complainant’s claim for monetary damages for his cost of retaining an alternative licensed contractor to correct B and M’s workmanship at his residence may be resolved in a civil court of competent jurisdiction. RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, shall 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, July 17, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. C-2 (5/30/12 Bid and Invoice). [2] Administrative notice is taken of Spartan Plumbing Inc.’s prior license record as reflected on the Registrar of Contractors’ public website on July 15, 2013. Such prior license record reflects that License No. K.37- 196990- D of Spartan Plumbing Inc. is current. [3] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [4] Complainant testified that he was not sure of the name of the previous contractor. [5] See Exhibit No. R-1 (5/30/12 Bid and Invoice). [6] See Exhibit No. C-1 (Telephone records). [7] See 7/15/13 Hearing Record (hereinafter “H.R.”) at 1:37:27-1:38:52. [8] See Exhibit Nos. R-2.1, R-2.2, and R-2.3 (Bid and Invoice from Spartan Plumbing Inc.).

-----------------------

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