ALJDEC decisions subject to certification as final

2020A-04579-CHC-ROC · Registrar of Contractors · 2021-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Delbert Arlen Humphries,

COMPLAINANT

Ronald Bruce Moore

DBA: Castcade Arizona,

License No. ROC 244847,

RESPONDENT

No. 2020A-04579-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2021, August 2, 2021 and September 10, 2021.

APPEARANCES: Complainant Delbert Arlen Humphries appeared on his own behalf. Robert Henige and Ronald Moore appeared on behalf of Respondent. Investigator Steve Lawton appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

______________________________________________________________________

FINDINGS OF FACT

Ronald Bruce Moore DBA: Castcade Arizona (Respondent) is the holder of License No. 244847 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 24, 2019, Delbert Arlen Humphries (Complainant) signed a contract with Respondent for construction of a pond with a waterfall in his backyard. The contract amount was for $19,082.00.

On or about September 24, 2020, the Registrar received a Complaint containing ten items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. An original written directive was issued on October 6, 2020. The only item requiring correction was the power cord not being buried with a sleeve or conduit.

On or about November 17, 2020, Complainant sent an e-mail to Investigator Wiskow informing him that the waterfall was leaking as evidenced by an abnormal water bill from the City of Glendale.

A second jobsite inspection was conducted on December 11, 2020 by Investigator Steve Lawton. Investigator Lawton then issued a written directive on or about January 26, 2021 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A) (22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 26, 2021.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Leaking of the water feature is causing higher than average water usage.

Investigator’s Observation: It could not be determined that there is a leak at time of inspection. After further review of billing and a representative from City of Glendale water department it appears that a possible leak is within the water feature. Determine that if there is a leak and correct by appropriate means.

Governing Rule: Workmanship Rule: ARS 32-1154 (A) (3); Namely R4-9-108

Complaint Item 2: Compliance Item:7-South pump electrical cord embedded in concrete with no sleeve to remove chord. Investigator’s Observation: Power chord for one of the pumps is buried underneath soil and concrete with no sleeve or conduit. Power chord should be buried in a conduit or sleeve so soil does not come into contact with the chord. Hiding the chord on the ground on top of soil is acceptable. *Contractor should repair by appropriate means. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Investigator’s Observation: It was stated that the Complaint item from written directive issued by

Inv. Wiskow 10/06/2020 shall be completed per this directive.

Governing Rule: Workmanship ARS 32-1154 (A) (3); Namely R4-9-108

(All errors contained in the original)

A Compliance Jobsite Inspection was performed on March 25, 2021. In his notes regarding the same, Investigator Lawton noted that the power cord issue was completed but the, “[w]ater feature at time of inspection appears to be leaking still. Cause has not been determined.”

On April 1, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about April 4, 2021, Respondent e-mailed an Answer to the Registrar, stating that they were “unable identify the source of leak” because it had been a year since construction.

On or about April 29, 2021, a Notice of Hearing was issued setting a hearing on June 7, 2021 at the Office of Administrative Hearings, an independent state agency.

After several continuances, the hearing was held on July 20, 2021, August 2, 2021 and September 10, 2021.

Investigator Lawton testified as to his involvement and the above timeline.

Investigator Lawton testified that there was no water in the pond when he inspected the same and thus could not identify from where the leak was emanating.

Further, Investigator Lawton testified that he issued the Citation because work had not been done to determine to cause of the leak. Investigator Lawton testified that he could only surmise there was a leak based upon the Complainant’s water bill from the City of Glendale.

Complainant testified on his own behalf as well as his wife, Dayna Heath and offered seven exhibits into evidence.

Complainant testified that he picked Respondent over other contractors and was not pleased with its work ethic, as they showed up when they wanted to, and took a long time to complete sections and only hours to complete others.

Complainant testified that within two weeks of the completion of the project, the pond was turning green, and that Respondent was unresponsive in helping with the same.

Complainant testified further that he had another contractor help him with the discoloration of the pond and helped to remove some of the rocks in case that was the cause.

Complainant testified that he did not become aware of the leak until the City of Glendale Water Department informed him that his water bill was unusually high. During a courtesy visit on October 18, 2020, Complainant and a representative from the Water Department, isolated the leak to the waterfall in the pond after the water to the house was turned off.

Complainant testified that he was frustrated that he paid nearly $20,000.00 for the pond/waterfall and it failed after 15 months. He also testified that Respondent should not be allowed to contract again.

Next, Dayna Heath testified. She testified that they were out a lot of money for the waterfall and now it is unusable.

Ms. Heath also testified that the rocks were removed after Respondent suggested the same for cleaning the pond to help rid the green color.

Ms. Heath testified further that Respondent’s work had to be the cause and it could not have been due to the installation of artificial turf around the pond, twigs from trees or rats as Respondent opined.

Robert Henige testified on behalf of Respondent and offered one exhibit into evidence.

Mr. Henige testified that Respondent had been in business for 27 years and has never had an issue like this.

Mr. Henige testified that the pond worked well for about a year before the leak and the leak did not start until Complainant moved the rocks.

Mr. Henige testified that Respondent complied with the directive by coming to the property and repairing the cord but after inspection of the pond, he was unable to determine the cause of the leak.

Mr. Henige believed that Respondent’s work was within the workmanship standards. Mr. Henige offered several theories for the leak, namely that Complainant and/or subsequent contractors somehow damaged the waterfall when stepping into the pond and removing the rocks, other contractors caused the damage when installing the artificial turf, or that the rodents were chewing through the foam in the back of the waterfall.

Mr. Henige testified that there would need to be a significant hole to lose over 1000 gallons of water, but he did not observe the same.

Mr. Henige testified that he ultimately believed that rodents or another animal caused the damage because he observed evidence of debris which looked like a nest once he removed three boulders.

Further, Mr. Henige testified that when there is a water feature added, it could attract animals to the same that were previously not seen on the property.

Administrative notice is taken of Respondent’s prior License record on September 24, 2021. Such prior License record reflects that Respondent’s License No. 244847 was first issued on May 8, 20208, and reflects that there is 1 open complaint, namely the present complaint.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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 Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The main issue in this case is the leak in the pond. After reviewing the testimony and thoroughly reviewing the Registrar’s file, insufficient evidence exists to demonstrate that Respondent’s workmanship caused the leak. First, the Investigator could not determine the cause of the leak any was only relying on Complainant’s report from the City of Glendale Water Department. Second, the waterfall had been operating properly for nearly one year before the leak was discovered and due to the size of the leak, it is unlikely that this would have occurred well after construction. Third, the cause still has yet to be determined and while numerous theories Mr. Henige presented could be the cause, there was insufficient evidence presented that it was a workmanship issue. Therefore, Complainant did not establish that the leak was due to Respondent’s poor workmanship in in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence established that Respondent’s work with regard to the power cord was not in conformity with the Registrar’s standards. Mr. Henige did not dispute that there were issues with cord. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established and the parties and the Registrar agreed that the cord was properly repaired. Further, because there was no workmanship violation for the leak, there is no in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the case number 2021-04579 be dismissed against the Respondent.

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 30 days from the date of that certification.

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-137160-45720000Done this day, September 24, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000