ALJDEC decisions subject to certification as final

2015A-4102-ROC · Registrar of Contractors · 2016-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2016 APPEARANCES: Glenn Phillips, Charles Hill, William Kinsella, Complainant’s representatives and owners; Jack Crane, Respondent’s representative; Arlo Houston, Registrar of Contractors Investigator ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against Respondent with the Registrar of Contractors, BCG Well Association failed to establish that Respondent violated A.R.S. § 32-1154(A)(3). Therefore, it is recommended that the Registrar of Contractors dismissed this matter in its entirety. FINDINGS OF FACT 1. Complainant’s representatives (hereinafter “Complainants”) filed a complaint with the Registrar of Contractors against Respondent when Respondent failed to fix their jointly owned well. 2. At the hearing, Complainants argued that Respondent committed a violation when he was hired to fix their jointly owned well and he did not fix it. 3. According to the testimony at hearing, which was not disputed, when the well didn’t work in April 2015, Complainants called Respondent to come fix it. Respondent had a history of servicing the well and had installed Schedule 120 PVC pipe originally and had used more of the same pipe in 2007 when he did some repairs. 4. In April 2015, Respondent checked the well’s pump and found that it was not working properly. Because it was under warranty, he took it to the manufacturer who tested it, found it wasn’t working properly, and replaced the pump and the pump motor. When the well still did not pump water, Complainants decided to get a second opinion. Another company told Complainants that the PVC pipe was the wrong material for the job and replaced it with metal pipes. After the second company replaced the pipes, the well worked again. 5. Complainants argued that Respondent should have found the leak and fixed it the first time and Respondent should not have used PVC pipe. They argued that Respondent knew or should have known that the problem with the well was a leak in the pipes. 6. Complainants offered into evidence some information on wells that they looked up. Based on that information, Complainants concluded that PVC pipe was not appropriate for the job due to the water pressure.[1] They also complained that Respondent intended to charge them for the service of finding the leak in the PVC pipe after replacing the pump and motor didn’t make the well work again. 7. Respondent argued that he suspected a leak but also checked the pump and that the manufacturer would not have replaced it if it was working properly. He said he was going to check for leaks next, but Complainants decided to hire the other company. Regarding the issue of whether PVC pipe was appropriate for Complainants’ well, Respondent’s representative stated that metal pipes are not appropriate for Complainants’ well. He said PVC can be used due to the type of pump Complainants have and the fact that their water is at risk of freezing, which, he indicated, will increase the risk of rusting metal pipes. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. Complainants have not established that Respondent violated A.R.S. § 32- 1154(A)(3). Respondent is not required to know what is wrong with the well before investigating it. In this case, Respondent tested a pump that was under warranty, found that it wasn’t working properly and got it and the motor replaced for Complainants. At the very least, there were two things wrong with the well. There is no standard that requires well contractors to know everything that is wrong with a well before they test it or to fix everything on the first visit or to render their services free of charge. 5. Complainants did not establish that PVC was improper for the job. The information Complainants learned was limited to whether metal or PVC pipes held up better under the water pressure. Complainants did not consider the other factors that Respondent’s representative testified about. Complainants’ information does not outweigh the considerations made by Respondent, a professional working in the field. Even if Complainants had proven that PVC was improper for their well, it was undisputed that the PVC was installed more than two years prior to the complaint. Therefore, the Registrar of Contractors no longer has jurisdiction under A.R.S. § 32-1155(A) to consider the issue. RECOMMENDED DECISION Based on the foregoing considerations, it is recommended that the complaint in this matter be dismissed in its entirety.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification. Done this day, March 31, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibits C-15, C-17, C-18, C-19, and C-20.

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