ALJDEC

98F-3266-ROC · Registrar of Contractors · 1999-12-27

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 27, 1999.

APPEARANCES: Complainants appeared through Roberta (Bobbe) Lowe.

Respondent appeared through its President and qualifying party, William L. Diana.

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. At the outset of the scheduled hearing, an amendment to the Citation, Complaint and case caption was permitted without objection so as to reflect that Roberta (Bobbe) Lowe, the wife of Philip Lowe, is an additional Co-Complainant in this administrative action.

2. Complainants were the first occupants of a residence built by and purchased from Respondent who had previously utilized the structure as a model home. Complainants took occupancy in December, 1996, and filed a complaint with the Registrar of Contractors in April, 1998, approximately months following their initial occupancy.

3. Leaking conditions were experienced under the sinks in several locations within the home. Initially, a leak occurred under the kitchen sink, followed by leaks under the bar sink and under the downstairs hall bathroom sink. A further leak from under the toilet in the upstairs master bathroom was also discovered at a later time.

4. All of the above-identified leaks, which encompassed a reappearance of the kitchen sink leak on two more separate occasions, appeared to be attributable to breaks or splits in the plastic tubing or piping between the wall and the plumbing fixture.

5. The plumbing and piping system utilized by Respondent in this and in other homes comprising approximately half of a 80-unit subdivision, including its model homes, was a Manobloc system consisting primarily of polyethylene tubing. The system was manufactured and distributed by Vanguard Industries, Inc.

6. Upon receipt of notice from Complainants of the leak problems, Respondent initially communicated its position that such leaking conditions were not the contractor’s responsibility but rather were matters involving homeowner maintenance. However, no unanticipated or improper use or abuse of the plumbing system equipment or fixtures was demonstrated on the part of the household occupants.

7. In an effort to mitigate potentially greater water damages, Complainants undertook to rectify some of the leak problems with the guidance and help of the product’s manufacturer. Conflicting testimony was presented with respect to whether or not component parts for the system installed in Complainants’ residence are still available. In any event, as of the date of the instant hearing, all leaks have been curtailed either through the efforts of Complainants or through repair work performed by or on behalf of Respondent.

8. Some plumbing components under the already-repaired bar sink were utilized by Complainants during the course of one of their own repair efforts with respect to the curtailing of a subsequently appearing leak under a bathroom sink. Complainants’ actions in restoring the functional use of a more frequently used household feature is found to have been both justifiable and prudent. Consequently, Complainants are determined to be entitled to the further proper repair by Respondent of the presently inoperable and wholly unusable bar sink whose component parts were necessarily utilized elsewhere in the home to rectify another leaking condition.

9. The evidence revealed that almost all of the flexible plumbing pipes in Complainants’ home, unlike those within other neighboring dwellings, were pulled relatively taut during installation with a substantially straight direct wall-to-fixture connection rather than allowing a longer proper bend radius. This was shown to be contrary to express recommendations from the product’s manufacturer. The fact that leaks were experienced by Complainants at only four or five locations and not at numerous other sink or toilet outlets does not, however, relieve Respondent of its present duty to re-check and, if necessary, to correct all household installations so as to assure substantial conformance with applicable manufacturer’s specifications.

10. Respondent subsequently installed pressure reduction valves throughout the subdivision after receiving information that the municipality was altering its water pressure. The evidence at the hearing was inconclusive with respect to whether or not the model home ultimately purchased by Complainants received such a valve. Credible testimony indicated that a significantly contributing factor to leaks within Complainants’ house might well be the omission or failure of any such valve. Respondent remains responsible for the proper functioning of any installed valve, especially where leaking conditions are shown to exist, or alternatively, for the furnishing and installing of any such valve item that may have been omitted despite the admitted intention to equip every home in the subdivision with this device. If in fact a pressure reduction valve had been installed on Complainants’ home, Respondent must verify its proper functional capabilities, which may necessitate either the repair or replacement of such valve. Conversely, if such valve had not been installed on this former model home, unlike the treatment given to most all other homes in subdivision, Respondent is found obligated to furnish and install this item on Complainants’ residence, verifying its proper functioning as part of the installation process.

11. It was not effectively disputed that escutcheons were not installed at various points where the piping protrudes from the wall surfaces. This admittedly improper omission, reflecting adversely upon Respondent’s workmanship, must be rectified by Respondent who is found obligated to provide and install proper escutcheons. The manner of installing many or most piping or tubing components without adequate bend ratios in accordance with the manufacturer’s express specifications is also found indicative of substandard workmanship attributable to Respondent. These deficiencies must be appropriately corrected by Respondent, such remedial work to include the re-checking of “all” household plumbing installations below or behind any fixture,

irrespective of any prior leaking history, as well as the seeking and following of instructions from the product’s manufacturer with respect to the manner of repair where needed, especially relating to materials and bend ratios.

12. Following a jobsite visit, the Registrar’s assigned Inspector issued a written directive to Respondent requiring the performance of remedial work on the then-existing sink leaks and also on the omitted escutcheons. Although the leaks were shown to have been curtailed at that time, at least one such leak had reappeared after Respondent’s repair attempt below the kitchen sink, prompting Complainants resort to self-help, and the escutcheons were never furnished and installed. However, even though substantial compliance with the written directive has not been achieved by Respondent, it is determined under all the circumstances that, except for a provisional license suspension conditioned upon the performance of necessary and appropriate corrective measures, no separate or additional civil penalty should be imposed against Respondent.

CONCLUSIONS OF LAW

1. The totality of the evidence sufficiently established violations by Respondent of the provisions of A.R.S.§32-1154(A)(23) and (3); namely, Rule R4-9-108. However, no violations by Respondent of the wrongful act provisions of A.R.S. §32-1154(A)(7) were adequately proven hereunder.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order, that the Class B license of Respondent shall be suspended until

the Registrar receives proof that Respondent has properly accomplished the remedial work set forth in Findings of Fact Numbered 8 through 11, inclusive.

It is further recommended that if Respondent accomplishes all of the above-referenced remedial work in a proper, workmanlike manner on or before this Order’s effective date, then no license suspension shall be imposed but instead that the entire Citation and Complaint in Case Number 98-3266 shall be closed.

Dated: January 6, 2000.

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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826