ALJDEC decisions subject to certification as final

2017A-4661-ROC · Registrar of Contractors · 2018-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark Gregory Momoi,

COMPLAINANT,

v.

Frazee Water Well Drilling, LLC,

License No: 186810

RESPONDENT.

No. 2017A-4661-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 1, 2018

APPEARANCES: Complainant Mark Gregory Momoi appeared on behalf of himself. Alexander J.N. Karam, Esq. appeared on behalf of Respondent Frazee Water Well Drilling, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. In or about June of 2016, Complainant Mark Gregory Momoi (“Mr. Momoi”) and Respondent Frazee Water Well Drilling, LLC (“Frazee Water) entered into a contract wherein Frazee would drill a well at 44726 N. 16th Street, New River, AZ 85087 (“property”).

2. On or about June 30, 2016, the Arizona Department of Water Resources (“ADWR”) issued a permit (“permit”) to Mr. Momoi for the drilling of a new well on the property. Frazee drilled a well on the property.

4. On or about September 11, 2017, the Registrar received a complaint from Mr. Momoi alleging poor workmanship on behalf of Frazee.

5. On or about September 22, 2017, Investigator Stephen Lawton (“Investigator Lawton”) conducted an onsite job inspection.

6. After the onsite job inspection, Investigator Lawton conducted a subsequent investigation and consulted with Tom Hanson, Supervisor of the Maricopa County Department of Environmental Health Services. Mr. Hanson informed Investigator Lawson that the well was not installed in the correct location per the July 2016 permit.

7. On October 5, 2017, Investigator Lawson issued a Directive to Frazee. The October 5, 2017 Directive provides, in relevant part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 10/31/2017. You are hereby directed to remedy the following violations by the appropriate means:

Install well per the location on permit issued

June 30, 2016, well registration number 55-226200,

file number A(6-3) 4 DAD.

Install well per Az. Dept. of Water Resources Statutes and 100ft from septic tank.

8. At the time that the Directive was issued, a garage had been built in the

location where the well should have been drilled according to the permit.

9. On or about October 24, 2017, Frazee sent an email to Mr. Momoi asking that he complete an abandonment form so that Frazee could install the well in the location stated on the permit.

10. Mr. Momoi did not complete and return the abandonment form.

11. On November 14, 2017, Mike Ball, a Compliance Enforcement Officer with ADWR sent an e-mail to Investigator Lawton about the complaint. The November 14, 2017 email provides, in relevant part, as follows:

As of today, the Department has yet to receive either a Notice of Intent (NOI) to MODIFY well 55-226200 or a NOI to ABANDON the well. In either case, Mr. Momoi (the registered well/land owner) would have to sign the notice before the Department would issue the applicable card authorizing the work. In an e-mail dated 11/7/2017, Renee Frazee indicated that on 10/24/2017 she had forwarded to Mr. Momoi a NOI to Abandon the well. On 10/25/2017, Renee emailed me a copy of a NOI to MODIFY along with a letter explaining what it was that Frazee wanted to do to well 55-226200. On 10/31/2017, Scott Cerkoney e-mailed me saying that David Frazee had given Mark Momoi a Notice of Intent to Abandon form, which required his signature. {As you can see, Scott is referring to a NOI to Abandon while Renee is talking about a NOI to Abandon AND Modify} Scott also indicated that there was “no permit for a new well included.” As far as the Department is concerned, based on the well inspection conducted on 8/15/2017, well 55-226200 needs to be either brought up to code or abandoned. There is nothing in the Department’s statutes and rules that would require or force Frazee to drill a replacement well or give any money back. As a contractual matter, that would fall under the ROCs purview. If necessary, I can proceed with a formal case file which will be sent to the Department’s Legal Division. If things follow the usual course, Legal will most likely issue a Stipulation & Consent Order (SCO) which will force Frazee to either bring the well up to the current minimum well construction standards (if that is possible) or abandon the well in accordance with AAC R12-15-816. It appears that both sides are at a stand-still and are somewhat confused over what they need to do in order to move this problem along. I will forward to you the various emails that I have referred to. Let me know what you think.

12. Frazee did not install a new well in the location stated on the permit because

it did not receive the abandonment form.

13. On November 16, 2017, the Registrar issued a Citation alleging that Frazee may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3), and (A)(22).

14. Frazee filed a timely response to the Citation.

15. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

16. Mr. Momoi testified on his own behalf and presented the testimony of Scott Cerkoney. Frazee presented the testimony of David Frazee and submitted exhibits 1 through 25.

17. At hearing, Mr. Momoi contended that Frazee performed poor work in the installation of the well. Mr. Momoi also contended that Frazee installed the well in the wrong location. Mr. Momoi denied that he agreed with Frazee to drill the well in location where it is installed.

18. Frazee alleged that Mr. Momoi agreed that the well should be installed in a different location because of the construction plans for the garage. Frazee contended that it could not install a new drill in the garage because Mr. Momoi did not complete and sign the abandonment form.

19. Administrative notice is taken of Respondent’s prior License record on February 21, 2017. Such prior License record reflects that Respondent’s License No. 186810 was first issued on July 9, 2003, and is current. Such prior License record also reflects that there is one open complaint and one resolved/settled/withdrawn complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-

1154(A).

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.

3. 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).

4. Arizona Administrative Code provides:

R12-15-809. Notice of Intention to Drill

A notice of intention to drill required to be filed pursuant to A.R.S. § 45-596 shall be signed by the owner or lessee of the property upon which the well is to be drilled.

R12-15-810 A. Authorization to Drill

A. A well drilling contractor or single well licensee may

commence drilling a well only if the well drilling

contractor or licensee has possession of a drilling card

at the well site issued by the Director in the name of

the well drilling contractor or licensee, authorizing the

drilling of the specific well in the specific location.

R12-15-816. Abandonment

B. Except as provided in subsection (F) of this Section, the owner of a well shall file a notice of intent to abandon the well prior to abandonment, on a form prescribed and furnished by the Director....

5. The preponderance of the evidence does not show that Frazee violated A.R.S. § 32-1154(A)(2). The preponderance of the evidence presented at hearing shows that Mr. Momoi and Frazee agreed to move the location of the well from that which was stated on the permit.

6. The preponderance of the evidence does not show that Frazee violated A.R.S. §32-1154(A)(22) by failing to comply with the Directive. The preponderance of the evidence shows that Frazee could not have installed a new drill without Mr. Momoi completing an intent to modify or abandon the drill. Frazee attempted to contact Mr. Momoi to obtain a completed and signed abandonment form, but Mr. Momoi was unresponsive.

7. The preponderance of the evidence established that Frazee had a valid

justification for failing to comply with the Directive. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Frazee violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

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 is forty days after the date of that certification.

Done this day, February 21, 2018

Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors