ALJDEC

98F-M0423-ROC · Registrar of Contractors · 1999-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On January 7, 1999, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Don and Cindy Butcher appeared on their own behalf. Russel Riggs and James Robinson appeared on behalf of the Respondent. This hearing was continued to March 10, 1999 to allow additional corrective measures to be implemented. The same parties and representatives appeared for the hearing on March 10, 1999. Evidence and testimony were presented at the March 10, 1999 hearing. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Don and Cindy Butcher (the “Complainants”) own a home (the “Home”) located at 2861 E. Fairfield, Mesa, Arizona.

2. James Robinson is the vice-president of construction for G W Building Company, Inc. (the “Respondent”). Russel Riggs is the Respondent’s Project Coordinator.

3. The parties previously had entered into a contract for the Respondent to build the Home. On or about August 20, 1996, escrow closed on the Home. On or about September 30, 1997, the Complainants filed a Complaint with the Registrar of Contractors (the “ROC”) alleging four items requiring corrective work. The record is not entirely clear on this issue but these four items apparently were satisfactorily corrected by the Respondent.

4. On or about August 27, 1998, the Complainants filed a second complaint with the ROC alleging a problem with an “air hammer through-out and pounding in the wall.” See Complainants’ Complaint, dated August 27, 1998. It should be noted that ROC Inspector James T. Walsh did a courtesy inspection of the Home on or about March 4, 1998. Mr. Walsh found the knocking or hammering sound to be within industry standards on March 4, 1998.

5. On or about August 10, 1998, ROC Inspector Walsh re-inspected the Home and found that the Home’s plumbing was making unacceptable noises. On or about August 11, 1998, Inspector Walsh issued a Corrective Work Order (the “CWO”) to the Respondent requiring the following corrective action:

1. Contractor to correct the air hammer in the plumbing through-out.

See CWO, dated August 11, 1998.

6. The Respondent hired H&S Plumbing to correct the plumbing problem at the Home. Robert Harrah is the owner of H&S Plumbing. Mr. Harrah determined that one of the Home’s water lines had “kicked loose.” The water line was corrected. However, the Complainants continued to hear pounding or hammering noises when the faucet valves were turned on in the bathroom sink or bath tub. Mr. Harrah testified that he returned to the Complainants’ Home at least six times to correct the knocking problem. Mr. Harrah testified that he replaced piping, re-anchored the plumbing, installed shock absorbers at each water fixture and installed urethane foam around the pipes.

7. Mr. Harrah testified that he now believes that the plumbing noises are within industry standards. Mr. Harrah testified that the Home’s plumbing will only make a knocking noise if the faucet valves are excessively slammed or jerked back and forth. Mr. Harrah testified that the plumbing makes no noise when the faucet valves are used in a normal way.

8. On January 7, 1999, a hearing was held in this matter. At this hearing, the Complainants agreed to allow Marlin Mechanical Plumbing (“Marlin”) the opportunity to correct the knocking noise in the Home’s plumbing. Anthony Vail is employed by Marlin. Anthony Vail testified that he removed one expansion tank from above the water heater. Mr. Vail testified that the plumbing noise was within industry standards.

9. Mr. Vail testified that the Home’s plumbing made virtually no noise when the faucet valves were used in a normal or customary manner. However, Mr. Vail testified that the knocking sound would occur when the faucet valve was rapidly “slammed” back and forth 10 to 15 times.

10. ROC Inspector Walsh re-inspected the Home’s plumbing for the third time on March 8, 1999. Inspector Walsh testified that the plumbing made no noise when the faucet valves were turned in a normal manner. Inspector Walsh testified that the Home’s plumbing is well within industry standards.

11. James Robinson testified that the Home’s plumbing is well within industry’s standards. Mr. Robinson testified that the Complainants personally chose Marlin Mechanical Plumbing to correct the plumbing noise. Mr. Robinson testified that the plumbing only makes a noise when the Complainants abuse the faucet valves by jerking them back and forth several times.

12. Mr. Butcher testified that the plumbing makes noise the first time that the faucet valve is turned from hot to cold. Mr. Butcher further testified that the knocking occurs every time that the faucet valve is turned to hot or cold. Mr. Butcher also testified that the problem seems to get worse over time.

13. Mr. Harold Sielert is the Complainants’ neighbor. He testified that the Home’s plumbing makes a loud noise when the faucet valve is quickly turned back and forth. However, Mr. Sielert conceded that the plumbing did not make the noise when the faucet valve was turned in a normal way. Mr. Sielert testified that he could not think of a reason why the Complainants would want to turn the faucet valves so quickly.

14. Mae Sielert is the Complainants’ neighbor. She testified that the Home’s plumbing makes a loud noise. Mrs. Sielert testified that the noise is 10 percent greater than before the Respondent’s corrective work. However, Mrs. Sielert conceded that Mr. Butcher had to turn the faucet “fast” to create the noise.

15. Mr. Jack Lewber is Cindy Butcher’s uncle. Mr. Lewber testified that the plumbing made noises in the Home’s master bathroom. However, Mr. Lewber testified that he did not see Mr. Butcher turn the faucet valve because he was in the Home’s dining room. However, he further testified that he did observe Mr. Butcher turning the faucet valve. Mr. Lewber conceded that the bathroom sink made no noise when turned slowly.

16. Arthur Snowden is Cindy Butcher’s father. Mr. Snowden is a construction manager who has experience in plumbing. Mr. Snowden testified that the Home’s plumbing makes a loud noise. Mr. Snowden speculated that the Home’s vacuum breaker needs to be “relocated over the hot water tank at the summit of the inlet on the cold water.” However, Mr. Vail and Mr. Harrah confirmed that the vacuum breaker is already located there.

17. Based upon the testimony of Inspector Walsh and two experienced plumbers (Vail and Harrah), the undersigned Administrative Law Judge finds that the Home’s plumbing is within industry standards when the faucet valves are used in a normal or customary manner. The undersigned Administrative Law Judge further finds that the Respondent has made reasonable (even extraordinary) efforts to correct the Home’s plumbing problems. CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #17.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #17.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #17.

5. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B license pursuant to A.R.S. §32- 1154.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number M98-0423 be dismissed.

Done this day, March 15, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 1999, to:

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

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826