ALJDEC

97F-F0265-ROC · Registrar of Contractors · 1998-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 1998 APPEARANCES: Barbara Zapotocky, Complainant, in her own behalf Rick Mabery, Esq., on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT In July of 1996, the parties entered an oral agreement whereby the Respondent who had installed a well pump for the Complainant, would install an irrigation drip system at the Complainant’s home on an acre of land in Cornville, Arizona. The property already had a partial watering system and the Respondent was to add to it. The system consists of approximately 12 independent lines. The Respondent was not responsible for the trenching or backfilling which the Complainant was to have done by someone else in an attempt to keep down costs. The exact price term was not established but initially appears to have been around $850.00 (original quote minus trenching cost and part of labor related to trenching or backfill cost). Costs increased as certain modifications were made. There was little organization during the course of the installation. Trenching was not completed prior to the irrigation lines being hooked up. The lines remained above ground and one of them was broken when someone stepped on it. In October, 1996, the Respondent billed the Complainant $1,891.22. Part of this cost was for the installation of the water pump which the Complainant paid. She did not pay an unspecified portion which reflected the additional costs of the irrigation system. Those costs had not been specifically disclosed to the Complainant prior to the work being done. The Complainant paid the Respondent approximately $700.00 to $800.00 for the work performed on the irrigation system in July and August of 1996. In January, 1997, the Respondent brought suit against the Complainant for the amounts still claimed as owing for the work. On March 11, 1997, the Complainant filed her complaint with the Registrar of Contractors (Registrar). Her primary complaint was that the Respondent was outside the scope of his license, took too long, was arrogant and rude and the system was inadequate. According to the filed Complaint, the work done by persons other than the Respondent cost $828.50 and included work on piping, sprinklers, valves and electrical. Inspector Charles Thomas (Thomas) of the Registrar’s Office inspected the premises and was unable to make specific determinations because additional work had been done on the system by persons other than the Respondent. Some of this work was done by an unlicensed company after the Respondent did not respond to some of the Complainant’s concerns. The Complainant asserts that the Respondent took excessive time to install the system and only worked on it sporadically for a few hours at a time. Since there was no contractual provision relating to time and in light of the testimony by the Respondent regarding changes to the system and the fact that all trenching was not timely completed, there is no basis for a violation on this ground. Valve boxes which are above ground were the responsibility of the Complainant who was responsible for trenching and backfilling. The valves cannot be placed in the ground until the pipes are placed in the ground. In this case the trenching had not been completed and some of the pipes remained on top of the ground. The Complainant asserted the Respondent failed to install a shut off valve and charged extra for this when required to do so. The Respondent testified he had installed a shut off valve at the back of the house and the Complainant had someone replumb the house and that person incorrectly installed the shut off valve. The evidence is insufficient to find the Respondent responsible for the problem with the shut off valve. The Respondent acknowledged that he did not install an anti siphon valve and asserted that the Complainant’s artesian well had seven pounds of pressure which made such installation unnecessary. Although the evidence suggests an anti siphon valve should have been installed as part of the system, no evidence of the code requirements was submitted and the suggestion does not meet the preponderance of the substantial evidence standard. The photographic evidence shows that drip lines were looped to plug the openings in one of the main irrigation lines. This alteration was due to the fact that a second main line was run to certain plants in order to deliver water at a different rate than the line which had looped drip lines. The responsibility for this change is unclear and although this appears to be a suspect means of plugging the holes in the line, it is not shown to be a violation. The taping of low voltage electrical wires was not improper. According to Thomas, leaving them above ground is improper. However, the Complainant was responsible for trenching and backfilling to bury the line. This had not been completed. The running of the electrical line from the well pump above ground and with no conduit was a safety hazard and unacceptable. It has been corrected by the Respondent after being instructed by Thomas. This was part of the pump system and technically not part of the irrigation system or this complaint.

The electrical wiring which runs above and on the ground from the house is a trip hazard (exhibit 11) and the condition needs to be remedied by the Respondent. A day prior to the hearing, the Complainant had the system inspected by a licensed landscape contractor (Green Earth Co.). It determined that the system in major part was not installed per standard construction practices for the industry. The report went on to state that a vacuum breaker assembly should have been installed, the electric control valves were installed above grade and susceptible to freezing, wire connections were not waterproofed, filter and pressure regulators should have been installed for proper system operation, that the system had several leaks and was poorly designed and improperly installed. A bid of $1,680. 00 was submitted to do corrective work. In 1987, the Respondent who has been licensed since 1970 requested a specialty license from the Registrar. According to an August 24, 1987 letter from the Registrar’s Office to the Respondent, the Respondent should apply for an L-29 (water pump installation and repair) license and a C-29 (machinery) license. The Respondent is cited under his C-29 license (this is classified as a specialty residential license under A.A.C. R4-9-101(C)). As part of his 1987 request, the Respondent stated he wanted part of an L- 44: “Parts of L-44, the electrical control panels & apparatus which are an integral part of the irrigation system, also backflow prevention devices, hose bibs service lines and connections to potable water lines…”

The above language is nearly verbatim language from the license description. It excludes the first paragraph of the license description which includes trenching and backfilling (the Respondent did not contract for this with the Complainant). It also excludes the beginning of the second paragraph of the description which provides for the “…installation, repair and maintenance of irrigation systems…”. Inspector Thomas did not cite the Respondent after seeing his request for the specialty license and discussing the issue with the Registrar’s Chief of Licensing, Alan Felber (Felber). CONCLUSIONS OF LAW The allegations of the Citation and Complaint concern A.R.S. 32- 154(A) (7) wrongful or fraudulent conduct resulting in substantial injury, (17) contracting beyond the scope of the license and (3) violation of any rule specifically A.A.C. R 4-9-108 workmanship standards. The evidence does not sustain the allegations of wrongful conduct. It does suggest that the Respondent’s son had limited recent experience in installing irrigation systems at the time he installed the Complainant’s system, that he failed to satisfactorily inform the Complainant of actual costs over and above the original quoted cost for any changes or modifications, that the need for some of the changes or modifications may have been due to his inexperience, that he may have failed to install the system according to code, and that he performed the work on a part time basis and in a haphazard manner. As stated previously in paragraph 12 of the Findings of Fact, suggestions are not substantial evidence. The letter from Green Earth Company is hearsay and although hearsay is admissible, it can be given little weight when there are issues regarding the truthfulness of the matters asserted. Green Earth could have a potential interest in doing corrective work. There is no way to determine if Green Earth distinguished between work done by the Respondent and by others. In short, there are a host of issues which absent cross examination under oath, can be raised to cast doubt on the Green Earth document. It cannot be considered substantial evidence under the circumstances of this case. The evidence does show that leaving the electrical line from the pump on the ground and uncovered was a safety hazard and poor workmanship. However, as previously stated, this was not part of the irrigation system contract or a part of this complaint. It is considered as evidence of a lack of experience by the Respondent’s son and questionable supervision by the Respondent. The only violation relating to workmanship standards in A.A.C. R4-9-108, which has been sustained, concerns the electrical wires for the system which come from the side of the house and are stretched approximately three to four inches above the ground. The Respondent claimed there was adequate slack to place these lines in the ground but the evidence does not support this assertion. The final issue concerns the scope of the license. Felber testified he considered the work out of scope because the Respondent’s specialty license did not include underground irrigation. However, in this case, the trenching and backfilling were specifically excluded and were the Complainant’s responsibility. Felber also testified that L-44 was a commercial license and did not authorize residential work. The 1987 request for the specialty license can be construed to relate to the C-29 license, which is a residential license. According to Felber, the wording of the request if granted, establishes the limitation of the license. The language from the request which is quoted from the license description (Findings of Fact, paragraph 18), appears to include the installation of pipe: “…also service lines and connections to potable water lines.”

In his request, the Respondent left out the word “installation” which precedes the above language in the license description. Felber acknowledged this specific case was confusing. This is made even more evident by the fact that the matter originated 11 years ago when others were speaking for the Registrar. At the time, the request may have been understood by the Registrar’s Office in the same way it was understood by the Respondent. In any event, the Respondent should not have to engage in speculation to determine what the current interpretation of a nine year old (in 1986), request might be, or if the wording of the request was or was not exactly perfect. There is some responsibility on the part of a governmental agency to help clarify actual or potential confusion which may be inherent in the specialty license application process. If there was such confusion at the time of the application, it should have been addressed or the Respondent should have been requested to make his application more clear. For the above reasons and based on the facts of this case only, no violation of A.R.S. §32-1154(A)(17) is found. . . . . . . RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that the Class C-29 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the wiring from the house which is above the ground; It is further recommended that if the Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, July 23, 1998.

_______________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of July, 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