ALJDEC

96F-2190-ROC · Registrar of Contractors · 1998-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 1998 APPEARANCES: Complainants appeared on their own behalf. Royal Homes & Associates, Ltd. (hereinafter referred to as “Royal”) appeared through its president, Jay Abramowitz. Tucker Plumbing Inc. (hereinafter referred to as “Tucker”) appeared through its president, Frederick Tucker. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. The above captioned matters were consolidated for the purpose of hearing since they involved similar issues of fact and entailed the use of the same witnesses. Furthermore, pursuant to request of Complainant, Andrew Kowalczyk, his wife, Susan Kowalczyk, had been added as Co-Complainant to the caption in these matters, subsequent to issuance of the Citations,. 2. Royal was the general contractor on new custom home construction accomplished for Complainants. Tucker was the plumbing subcontractor retained by Royal to perform the plumbing work on the project. Complainants allege a singular construction deficiency in the work performed by Tucker and Royal and same is discussed in the findings below. 3. The following salient facts were adduced at the hearing and are important to note: a. Although Complainants did not move into their home until the summer of 1996, they filed their original complaint against Royal in March 1996. That complaint was ultimately resolved subsequent to issuance of a Registrar of Contractors’ Corrective Work Order and closed on June 11, 1996. b. In January 1998, Complainants filed an additional complaint against Royal and, for the first time, against Tucker, alleging that there is an objectionable and unacceptable noise emanating from their plumbing pipes, in a specified area of the master bathroom when the hot water is turned-on. This item of complaint was not referenced in the original complaint but nevertheless, the Registrar of Contractors elected to re-open the original complaint against Royal, rather than start a new formal complaint number on this issue. c. Although Complainants contend that the objectionable noise was discernible within a very short period of time after taking occupancy of their home, they did not notify Tucker of the problem for a considerable period of time after first noticing the sound and not until after the time that they installed some form of timer clock control on the hot water tank installed above the master bathroom. d. Evidence of record supports a finding that the first time Royal became aware of the problem at issue herein was when it received notice from the Registrar of Contractors that a complaint had been filed against its license on said issue. e. It was undisputed that the sound at issue herein only appears when the hot water is turned-on for the first time in the morning or any other time after the hot water has not been used for a considerable period of time. Moreover, when the sound appears it only lasts for a very short duration of time.

f. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held on February 26, 1998. On the day of the jobsite inspection Complainants had not utilized the hot water prior to the time the inspector arrived at their home and thus, were able to demonstrate to the inspector what occurred when the hot water was turned-on for the first time of the day. g. At the jobsite inspection the Registrar’s inspector heard the sound in question when the hot water was initially turned-on. He further observed that the sound only lasted for a brief period of time, sounded like a minor degree of ticking, and that when the hot water was turned-off and turned-on again that there was no such noise coming from the hot water system. The inspector found the complained of noise to be de-minimus and, in fact, testified at the hearing that the sound was not even as loud as the sound made when a toilet is flushed. h. As a direct result of the findings at the jobsite inspection, the Registrar’s inspector issued a letter to the parties, indicating that he found the noise in question not to be uncommon or workmanship related and indicated that it was his opinion that the matter should be closed. Complainants objected to the closing of the complaint and requested the instant hearing. 4. Although Complainants contend that the sound in question is a loud banging type noise, the weight of the credible evidence of record was sufficient to support a finding that the sound in question is more akin to a minor ticking sound. The evidence of record supported a finding that the sound, which was of a short duration and only appeared when the hot water was first turned-on after sitting idle for a very considerable period of time, was not something that was beyond minimum industry standards for acceptable plumbing work. 5. Although Complainants contend that the Registrar’s inspector merely conducted a “cursory” inspection of their complaint, it is determined that the assigned inspector on the instant matter did an appropriate and professional inspection of the complaint as presented by the homeowner at the time of the aforementioned jobsite inspection. 6. Evidence of record demonstrated that Complainants recently hired another plumbing contractor to investigate the noise problem and that for a cost of $60.00 he performed specified remedial work, including taping pipes together, which appears to have had the effect of terminating the noise. Nevertheless, credible testimony presented at the instant hearing demonstrated that it is improper to tape plumbing pipes together. 7. Notwithstanding the foregoing finding referable to the remedial work performed by another plumber retained by Complainants subsequent to the aforementioned jobsite inspection, it is very important to note that the Registrar of Contractors merely applies minimum industry standards when determining the adequacy of workmanship and not perfection standards. Thus, although Complainants may have been able to terminate the noise in question, it does not alter the fact that the complained of plumbing sound is determined to be within minimum industry standards for acceptable workmanship. Thus, Complainants failed to sustain the requisite burden of proof on this issue, necessary to establish a violation of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. When viewing alleged construction deficiencies the Registrar of Contractors utilizes minimum standards for what constitutes acceptable workmanship and not perfection standards. The Registrar of Contractors applies the same standards whether the home costs $500,000.00 or $80,000.00. Although homeowners would understandably desire perfection in the construction of their home, that is not the standard upon which to determine whether or not the State’s Contracting laws have been violated. 2. The evidence of record did not sufficiently sustain a finding of violations by Royal or Tucker of the provisions of A.R.S. §32-1154A, as charged in the applicable Citations.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that these Citations, together with the Complaints upon which they are based, be dismissed.

Done this day, August 27, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of August, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826