ALJDEC

97F-P0193-ROC-RHG · Registrar of Contractors · 1998-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 1998 APPEARANCES: Harvey Cake, Complainant, appeared telephonically in his own behalf John Kelton, Qualifying Party, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen W. Reed _____________________________________________________________________

FINDINGS OF FACT This case was heard on August 14, 1997. A Recommended Decision was issued on August 19, 1997, and on August 22, 1997, the Registrar of Contractors (Registrar) adopted the Recommended Decision to the extent of requiring the Respondent to provide an appropriate replacement pump for the Complainant’s automobile dealership waste pump system. The Respondent’s motion for rehearing set forth the grounds for rehearing. The grounds were that compliance with the Registrar’s Order in this case would constitute a breach of contract and violation of A.R.S. §32- 1154(A)(2), departure from plans and specifications, and impossibility to the extent that there was no pump which could perform both functions required by the Complainant’s business (standard residential type waste and non residential waste produced by the Complainant’s business). The Findings of Fact in the original Recommended Order for this case (except for paragraph 10) are adopted and made a part of the findings on rehearing. By letter to the Complainant dated October 28, 1997 (after the Order in this case), and at the Complainant’s request, the engineer who designed the waste system asserted that upon review of the design, the pump which had been installed was the pump specified by the plans and was adequate for the use at the Complainant’s business. The finding in paragraph 4 above is in direct conflict with Respondent’s Exhibit B at the original hearing which was a basis for the conclusion in paragraph 10 in the original Recommended Decision. The evidence presented by the Respondent was that upon inquiry with representatives of the pump distributor, absent an interceptor-separator (Separator), there is no single pump which can adequately process the different waste products which are generated by the Complainant’s business. It is the function of the 1000 gallon Separator to remove the waste (sand and abrasives) which may cause damage to the high speed grinder pump. The other alternative is to install two independent waste systems. A low speed solid handling pump would not meet the requirements associated with normal waste disposal which is also a requirement of the Complainant’s business. CONCLUSIONS OF LAW One basis for the conclusion holding the Respondent liable in the original Recommended Order was based on the determination that the Respondent’s guarantee regarding any defect which might develop due to improper materials, applied to this case because the pump was not suitable for the job. The other basis was that the Respondent should have known (based on the Respondent’s experience, presumed expertise and the pump application statement of use for high residential sewage applications), that the pump would not accomplish the necessary task and was inadequate despite what was called for in the plans, and the Respondent should have communicated this to the general contractor. In light of the Complainant’s evidence from the engineering firm that designed the system that the installed pump was the appropriate pump, coupled with the Respondent’s tenuous but unrebutted evidence regarding the unavailability of a single pump which could accomplish the dual function of what the Registrar’s Order requires, it is concluded that paragraph 10 of the Findings of Fact in the original Recommended Order, is in error in stating the installed pump was not appropriate and the low speed pump was appropriate. The conclusion of law in paragraph 4 of the original Recommended Decision is therefore also in error because it was based on a the finding that the guarantee applied to defects due to improper materials. In view of the assertion by the engineer who designed the system, that the installed pump was appropriate for its intended purpose, and the resulting conflict with the original conclusion by the Administrative Law Judge in paragraph 3 of the original Recommended Order, that the installed pump was inadequate (based on Respondent’s exhibit B at the original hearing), it is concluded for the purposes of rehearing that the original conclusion that the Respondent should have known and should have informed the general contractor or architect that the specified pump was wrong, was in error. Based on the above conclusions (paragraphs 2 and 3) of the instant Recommended Order, the foundation for the finding of the violations and the resultant Recommended Decision requiring corrective work in the original Recommended Decision, has been eliminated, thereby negating the violations and the Recommended Order. RECOMMENDED ORDER In view of the foregoing it is recommended that the Recommended Order of the Administrative Law Judge dated August 19, 1997, and the Order of the Registrar, dated August 22, 1997, be reversed; It is further recommended that the Citation and Complaint be dismissed. Done this day, March 11, 1998.

_______________________________ ALLEN W. REED Administrative Law Judge

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

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

By _______________________________ -----------------------

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