ALJDEC decisions subject to certification as final

2012A-71-ROC · Registrar of Contractors · 2012-08-28

`IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: June 1, 2012, at 8:00 a.m. and August 10, 2012, at 8:00 a.m. APPEARANCES: Complainant Senobia Raupe appeared on her own behalf; Respondent A P I Electrical Contractors L dba: A P I Pool Service appeared through Scott McQuade, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 6.188090-R to A P I Electrical Contractors L doing business as (“dba”) A P I Pool Service (“Respondent”). The Registrar received a complaint from Senobia Raupe (“Complainant”) against Respondent regarding its repairs of a leaky pool filter and broken grid at her house at 452 West Marlin Place, Chandler, Arizona. According to the complaint, as a result of Respondent’s repairs, the yard on the west side of Complainant’s house flooded, causing a tree to fall on a fence. Complainant requested that the Registrar require Respondent to “[t]ake ownership of the damages, pay for tree removal and replacement, additional water usage, foundation inspection, and any other damages identified upon inspection.” The Registrar issued a Citation and Complaint against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on June 1, 2012, and August 10, 2012. Complainant testified on her own behalf and submitted fourteen exhibits. Respondent presented the testimony of its qualifying party and member, Scott McQuade, and submitted seven exhibits. Additional Evidence On or about October 6, 2011, Complainant closed escrow on the purchase of the property on West Marlin Place. At the time she purchased the house, Complainant purchased a home warranty policy from American Home Shield. Respondent was one of American Home Shield’s approved contractors. Complainant’s property has a pool in the backyard, on the north side of the house. When Complainant purchased the property, there was a medium-sized Chilean mesquite tree on the west side of the house. Aerial photographs show that the crown of the mesquite tree was over the block wall on the west side of Complainant’s property. Photographs that both parties submitted showed that the mesquite tree was leaning toward the block wall and staked on the west side, with the cable anchored near the wall. On or about November 4, 2011, Complainant called American Home Shield because her pool filter was leaking. American Home Shield referred Complainant to Respondent. On or about November 9, 2011, Respondent’s technician performed a service call at Complainant’s house and took the filter apart. Respondent’s technician told Complainant that he had ordered the parts and would return to complete the repair. On or about November 10, 2011, the pool pump at Complainant’s house turned on and pumped a large amount of water through the yard on the west side of the house and through her neighbor’s yard. The neighbor turned the pump off. When Complainant called Respondent on November 10, 2011, the dispatcher informed her that she should make sure that the pump was turned off and that a technician would be out the next day. On or about November 11, 2011, Respondent’s technician made further repairs to Complainant’s pool pump and other equipment. Complainant complained to American Home Shield and to Respondent because she and her neighbor agreed that the excess water caused the mesquite tree to lean closer to the block wall and Complainant’s neighbor’s house. Respondent denied responsibility for the tree’s movement. Complainant and her neighbor agreed that to prevent the tree from falling and damaging the block wall and her neighbor’s house, it should be removed. On November 12, 2011, Complainant had the tree removed. Respondent submitted a photograph of the tree that its technician took on November 11, 2011. The photograph showed an irrigation emitter several feet from the trunk of the tree and a depression around the emitter. Respondent submitted articles from horticultural websites that stated that mesquite trees should not be watered every day with an emitter but, instead, should be deep-watered infrequently to cause the roots to develop. The articles stated that as a result of too frequent shallow watering near the trunk, mesquite trees may blow over in a strong wind. Respondent’s articles also stated that mesquite trees in the city need to be pruned to survive storms and strong winds. Respondent submitted photographs of Complainant’s property that showed it drained correctly, from the backyard into the street in front of Complainant’s house. Complainant requested that the Registrar require Respondent to pay her the following amounts: (1) $150.00 for the cost of having the tree removed; (2) $14.79 for the water that drained from her pool, which was based on the difference between her November 2011 water bill and her December 2011 water bill; and (3) $2,675.39 to replace the mesquite tree, which was based on an estimate from Moon Valley Nursery to plant a tree that Complainant stated was comparable to the tree that she had removed. Complainant testified that because she no longer believes that the water from the pool damaged the foundation of her house, she does not seek damages for the costs of inspecting or repairing her house’s foundation. Mr. McQuade testified that he does not believe that water from the pool caused the mesquite tree to lean further toward the block wall on the west side of Complainant’s house for the following reasons: (1) The yard drained properly and most of the water drained into the street, rather than into the ground around the tree; (2) The tree had been leaning over the wall for years and had been staked to keep it upright; and (3) Improper watering and pruning caused the mesquite tree’s poor condition and precarious position. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Complainant did not establish that Respondent failed to repair the pool filter and other pool equipment in a professional and workmanlike manner and in compliance with applicable code requirements. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[5] Although under some circumstances, the Registrar may award restitution as a result of a proven contracting law violation,[6] the Registrar cannot award consequential damages.[7] Respondent acknowledged that its technician’s failure to turn off the pump so that it would not start caused water from the pool to flood the side yard. Even if Complainant established that the water caused the mesquite tree to lean further toward the block wall and her neighbor’s house, the costs of removing and replacing the tree are consequential damages that are not available in this administrative forum.[8] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar dismiss the complaint of Complainant Senobia Raupe in Case No. 2012-71 against Respondent A P I Electrical Contractors L dba A P I Pool Service’s License No. C-6.188090-R.

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, August 28, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [6] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). [7] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984). [8] “‘Consequential damages are such as are not produced without the concurrence of some other event attributable to the same origin or cause; such damage, loss, or injury as does not flow directly and immediately from the action of the party, but only from the consequences or results of such act.’” State v. Morris, 173 Ariz. 14, 17, 839 P.2d 434, 437 (App. 1992) (quoting 25 C.J.S., Damages, § 2 at 617).

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