ALJDEC

98F-2493-ROC · Registrar of Contractors · 1998-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 16, 1998.

APPEARANCES: Complainant, Terry Stevens, appeared in his own behalf.

Respondent, G T S Drilling, appeared through its owner and qualifying party, Clayton Vincent Cady.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

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. Notice is taken of the Registrar’s license records which reveal that Respondent’s Class C-53 license has been suspended by operation of law for non-renewal since March 1, 1998 and, if a renewal application together with the payment of a late fee is not submitted to the Registrar prior to February 28, 1999, such license shall expire. However, neither the non- renewal suspension nor any expiration of Respondent’s contractor’s license precludes the conducting of these administrative disciplinary proceedings which are expressly authorized pursuant to A.R.S.§32-1154(C).

2. Pursuant to a rather generalized and non-specific verbal agreement, Respondent agreed to and did dig a well on Complainant’s property. An estimated charge per foot of depth was given prior to the work and was the basis of a subsequent invoice from Respondent to Complainant.

3. Although reportedly digging to a depth in excess of 500 feet, the casing installed by Respondent measured 500 feet, including 40 feet of perforated casing, and the invoice charges were calculated on a total of 500 feet. Additional agreed charges were made for steel casing materials that had to be used instead of PVC materials. The aggregate amount set forth in the invoice, after a small credit for unused casing material, was $7,627.00, all of which was paid by Complainant.

4. Utilizing another specialty contractor recommended by Respondent, a pump was installed in the well approximately four months after the well was dug The evidence tended to indicate that this pump may have been undersized. Within a short time period of approximately thirty days, the pump developed problems traceable a significant extent of sand content in the water which was being pumped from the well. After an attempted repair, the pump again failed a day later and became unusable, necessitating the acquisition and installation of another, more properly sized stainless steel pump.

5. Significant concentrations of sand and/or other sediments continued to be present in the water being drawn from the well. In order to obtain and maintain effective usage of the well water for household purposes, this ongoing sandy water condition necessitated the resort by Complainant to further remedial measures at added expense. A storage tank was obtained and installed, as was a filter device. These measures have enabled Complainant to continue to use the water drawn from the well, but it was shown that the presence of sand, in a quantity bordering upon being excessive, is likely to adversely impact on the anticipated life span of the pump as well as on the probable longevity of other household appliances. Additionally, the bottom level of the well is becoming higher because of the ongoing depositing of sand and other solid or semi-solid sediments.

6. The evidence failed to demonstrate that the amount of sand being experienced in the well water was either excessive or was proximately attributable to any act or omission of Respondent constituting deficient workmanship in the digging and casing installation work performed on this jobsite. It is similarly difficult to assess any breach of contractual responsibilities against Respondent under the vague terms of the parties’ verbal agreement which appeared to contain neither guarantees as to water production or water quality nor any disclaimers of such guarantees.

7. Notwithstanding the issuance of a written directive by the Registrar’s assigned Inspector, the absence of any sufficiently proven duty on the part of Respondent, arising contractually or under prevailing industry standards, to eliminate or ameliorate the sand content of the well water would correspondingly result in the absence of any duty to comply with the agency’s directive.

8. Nothing in this decision should be construct as condoning the failure of Respondent, as a licensed specialty contractor, to have specifically and adequately informed Complainant, as the customer/consumer, of the risks that are applicable to any well drilling effort with respect to the possibilities of not producing sufficient water or of producing poor quality water.

CONCLUSIONS OF LAW

1. Absent some form of an express undertaking, assurance or inducement in advance of the contemplated work, whether verbal or written and whether within or separate from the basic contract, a licensed well driller who is not shown to have performed substandard work does not become an insurer with respect to the quantity or quality of water ultimately produced from the well.

2. Complainant did not sustain his burden of proving by a preponderance of reliable, substantial and probative evidence that Respondent violated any of the provisions of the State’s contracting laws as charged in this matter.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the entire Citation and Complaint in Case Number 98-2493 be dismissed.

Dated: November 23, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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