ALJDEC decisions subject to certification as final

2012A-713-ROC · Registrar of Contractors · 2012-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7, 2012, at 8:15 a.m. APPEARANCES: Irving Brohner (hereinafter “Complainant”) appeared on his own behalf. Brewer Plumbing Inc (hereinafter “Brewer”) appeared through its authorized representative, Robert Warren Hausler. 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. Brewer is the holder of License No. C-37.040833-R issued by the Registrar of Contractors. 2. This is a residential matter where Brewer installed new gas lines and new gas meters for two contiguous residential properties that Complainant owns that are located on a rocky hill in the Prescott, Arizona area. 3. Complainant was dissatisfied with the installation of the new gas lines. Complainant demanded that Brewer remove the new gas lines and reinstall the gas lines in a different location selected by Complainant. 4. When Brewer refused to remove and reinstall the new gas lines, Complainant filed a formal Complaint against Brewer with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Clifford Allen Frandsen (hereinafter “Inspector Frandsen”), conducted an onsite inspection of Complainant’s adjoining properties and on March 15, 2012, issued a letter notifying the parties that a citation would not be issued based on the following: The location of the gas meters for the two house properties was determined by the gas company. By geographical necessity the service line for the upper house has to cross both properties, and cannot be buried underground. The gas meters and the service lines were inspected and approved by the City of Prescott and the gas company.[1]

6. Complainant disagreed with Inspector Frandsen’s determination not to issue a citation and requested an administrative hearing. 7. Complainant testified that he was very dissatisfied with the location of the new gas lines and meters. Complainant testified that Brewer wrapped the gas line for the second house around the patio area of the first house without Complainant’s permission.[2] 8. Complainant testified that the gas line installation was ugly and not what he wanted. Complainant stated that there was a lot of “over-kill” in Brewer’s gas line installation. Complainant stated that the installation of the new gas lines could have been performed with “more imagination.” Complainant testified that Brewer’s workmanship was unsatisfactory and that he wanted the newly installed gas lines to be removed and reinstalled in a different manner and different locations.[3] 9. Inspector Frandsen testified that he conducted an onsite inspection of the gas lines and gas meters installed on the Complainant’s properties by Brewer. Inspector Frandsen stated that the natural gas lines and gas meters on Complainant’s property were installed in a workmanlike manner and complied with applicable code provisions. Inspector Frandsen opined that the gas meters were installed in accordance with the instruction of the local gas company and that there would have been no other practical way for Brewer to install the gas lines on Complainant’s properties.[4] 10. Brewer’s qualifying party, Robert Warren Hausler (hereinafter “Mr. Hausler”) testified that the natural gas lines and gas meters on Complainant’s properties were installed in compliance with applicable workmanship and code requirements. Mr. Hausler testified that the installation of the natural gas lines and gas meters were inspected and approved by the local building authority and natural gas supplier. Mr. Hausler stated that the new gas lines could not be installed on poles or underground as suggested by Complainant.[5] 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. The installation of the gas meters and gas lines on Complainant’s properties were inspected and approved by the local building authority and the natural gas company. This Tribunal concludes that there was no credible evidence that Brewer violated the charged provision of A.R.S. § 32-1154(A)(2).[6] 4. The new natural gas meters and gas lines were installed in a professional and workmanlike manner. This Tribunal concludes that there was no credible evidence that Brewer violated the charged provision of A.R.S. § 32-1154(3), namely A.A.C. R4-9-108.[7] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, shall be dismissed on the effective date of this Order. 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, August 21, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. C-9 (3/15/12 RCC007A letter of Inspector Frandsen). [2] 8/7/12 Hearing Record (hereinafter “H.R.”) at 21:19-22:50. [3] H.R. at 22:51-26:18. [4] H.R. at 27:30-30:40. [5] H.R. at 34:40-45:20. [6] A.R.S. § 32-1154(A)(2) includes among the grounds for disciplinary action against a contractor’s license, “Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [7] A.A.C. R4-9-108 provides 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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