ALJDEC

98F-1916-ROC · Registrar of Contractors · 1998-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 1998. APPEARANCES: Complainant appeared personally. Respondent appeared through its owner and qualifying party, Edward Joseph Hossa. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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

FINDINGS OF FACT

1. On December 29, 1997, one of Respondent’s technicians made a service call to Complainant’s residence. Water leakage was evident on the kitchen floor. The technician used a device which located a leak in a ¾” cold water supply underneath the kitchen floor. The technician assessed that it would be necessary to open the floor to fix the leak. Complainant was advised in a written estimate that the charge for the anticipated repairs was the sum of $705.93. Complainant tendered payment to the employee in the amount of $350.00. 2. On December 30, 1997, one of Respondent’s technicians made another service call to Complainant’s home to perform the repairs. Rather than tearing up the kitchen floor, the technician gained access to the leaking ¾” copper pipe by tearing out the concrete floor in the adjoining laundry room. The leak was located and repaired. After the repair was completed the technician tested the water meter and concluded that the leak had been properly repaired. The technician then closed the floor. Complainant tendered the final payment in the amount of $355.93 to the technician. 3. On December 31, 1997, Complainant’s wife contacted Respondent’s office to report water leaking again in the vicinity of the prior leakage. Respondent’s business manager dispatched a technician to Complainant’s house. The manager advised Complainant’s wife that if the leak was the result of Respondent’s prior repair, then there would be no charge for the subsequent repair. The manager further advised that if the leak was a new leak unrelated to the prior repair, then Complainant would be responsible for an additional charge for repairs. Because the service call was being performed on a holiday, the manager also advised Mrs. Roberts that a premium charge would be billed for any work performed that day. The technician observed the field conditions at Complainant’s house and left a written invoice with Mrs. Roberts explaining that the new repair would be performed under warranty if related to the prior repair or a new charge would be incurred otherwise. Mrs. Roberts decided that she did not want to risk paying a premium charge for a holiday-performed repair and decided to delay the service call repair. Complainant was not charged for the technician’s visit that day. 4. On January 2, 1998, one of Respondent’s technicians reported to Complainant’s home to perform repairs to the second leak. The technician opened the floor to observe the first repair, which was found not to be leaking. The technician then discovered a second leak on a ½” water line several feet from the first leak location. The technician made the necessary repairs to the ½” water line, tested the water meter to determine that there were no further leaks in the house plumbing and closed the floor. 5. Respondent had knowledge that repairs to old pipes such as those in Complainant’s home could stress other areas of plumbing, resulting in additional leaks in water pipes. There is no evidence that Respondent ever communicated such knowledge to Complainant. 6. Respondent, who possesses superior plumbing knowledge and experience compared to Complainant, was hired by Complainant for the purpose of stopping leaks in his home’s plumbing. The occurrence of the second leak only two days after the initial repair was foreseeable to Respondent, who should have advised Complainant that additional leaks could occur after the initial repair. 7. Notwithstanding Finding No. 6 above, it is determined that Complainant was responsible for the cost to repair the ½” water line. Such a condition, if present during the first repair, would have been an additional expense to Complainant at that time. 8. Respondent’s failure to properly advise Complainant that it was foreseeable that the initial repair to the ¾” water line could cause additional leaks in Complainant’s plumbing is deemed a wrongful act which has substantially injured Complainant. Complainant took time off from work to contest his insurance carrier’s interpretation that the repairs were two separate incidents, requiring two separate deductibles assessed on the claims due. Complainant’s insurance carrier eventually correctly concluded that the two repairs were one evolving incident. 9. It is determined that Respondent should be admonished by the Registrar of Contractors to properly advise customers that repairs to old pipes, such as Complainant’s pipes, may result in subsequent leakage at other weak points placed under additional stress due to the repair of an existing leak. 10. A review of the official records of the Registrar of Contractors indicates that Respondent has had an exemplary record with that agency. Therefore, no other disciplinary penalties should be assessed against Respondent in this matter.

CONCLUSION OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154 (A)(7).

RECOMMENDED ORDER

In view of the foregoing, it is recommended to the Registrar of Contractors that Respondent be admonished as provided for in Finding No. 9, above and that the citation and complaint in this matter then be closed. Done this day, July 28, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

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

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

ATTN: Joyce Armijo

By _______________________________

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