ALJDEC

99F-1916-ROC · Registrar of Contractors · 1999-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 29, 1999 APPEARANCES: Robert Coker, Complainant, in his own behalf William Wood, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact The Complainant, an Owner-Builder, was building his home in New River, Arizona. A water survey indicated water was available at a depth of 600 feet. The Complainant contacted the Respondent in the Spring of 1998, for the purpose of having a well drilled to provide water for the home. The Respondent referred Rainbow Drilling (Rainbow), to the Complainant, to drill the well. Rainbow drilled to a depth of 800 feet. The evidence is not conclusive, but the Driller’s Report states there was water flow of approximately a quarter of a gallon per minute at 350 feet and a half a gallon per minute at 650 feet. Five diameter inch PVC casing was placed in the bore hole to the bottom of the well. The bore hole is approximately eight inches in diameter. The space between the casing and the bore hole (Annulas) is approximately 1½ inches. The top twenty feet of the casing is steel with the Annulas sealed with cement grout. The bottom 80 feet of the casing is perforated. The Complainant paid Rainbow $10,980.00 for labor and materials. The soil at the drill site had clay at 200 to 380 feet and at 420 to 800 feet. Other soil layers consisted of gray rock. Under normal circumstances, water will ultimately rise to its own level (Static Level). If there is flow at 350 feet, absent using the water, it would presumably rise to 350 feet. Rainbow did not inform the Respondent of any water flow at 350 feet, but only informed the Respondent that the static water level was at a depth of 650 feet and that the perforations began at 720 feet. In August, 1998, the Respondent installed the pump at 700 feet (20 feet above the perforations), and waited for the completion of the electrical hook up. The electricity was not ready until six days after the pump was installed and the Respondent hooked the pump up two days later. If the water was flowing at ¾ of a gallon a minute, this amount of time would have allowed for the accumulation of up to several thousand gallons dependent on the well’s capacity. The water which was initially pumped out was muddy. The Respondent left the pump on and left the premises. The invoice cost for the materials for the pump, riser pipe, cable, including miscellaneous and labor was $3,871.72. Some items have not been included in the cost because they are presently functioning and being used (i.e., 3,500 gallon storage tank at $2,000.00). The Complainant telephoned the Respondent the following day to inform him the pump was not functioning properly. The pump would cut off after only ten to twenty seconds and the water which it was pumping was muddy. The Respondent went to the Complainant’s and checked the water storage tank which contained possibly 700 to 800 gallons of water. However, the bottom of the storage tank had the muddy sediment which had been pumped out with the water. The sediment is described as a red colored “silty” mud. The composition of the water suggested that sediment was impeding the proper functioning of the pump which requires clean water for proper operation. The Respondent suggested that the pump should be pulled out in order to try and clean the well. The pump is attached to pipe and lowered into place at the desired depth in the well. The Respondent began pulling the pump out and had difficulty from the outset. It took 10 days to pull the pump to a depth of 400 feet. This would normally have been accomplished in less than an hour if there were no problems. At 400 feet the pump could not be raised any further without the likelihood of damaging the casing which would essentially destroy the well. No further efforts have been made to extract the pump. The complaint was filed with the Registrar of Contractors on December 28, 1998. The Complainant also filed a complaint against Rainbow. On January 21, 1999, Inspector Phil Coscia (Coscia) performed an inspection at the Complainant’s home. The Respondent and a representative of Rainbow were also present. On April 24, 1999, Coscia issued a Corrective Work Order (CWO) which required the Respondent to determine the cause of the pump failure and the reason for the pump lodging in the casing and to correct this by the appropriate means. No CWO was issued against Rainbow and they are not a party to this case. To date there has been no further work on the well and the Complainant’s water is delivered and stored in the storage tank. The Respondent’s business has been sold to Keith Cotter. Conclusions Of Law The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A)(3), failure to comply with any rule, specifically A.A.C. R4-9-108, relating to workmanship; (A)(7), wrongful or fraudulent conduct resulting in substantial injury; and (A)(23), failure to take appropriate remedial action. The Respondent postulates that the water source or sources at 350 and 650 feet contain a great deal of sediment. The water and sediment flow to the bottom of the well through the Annulas. Based on the evidence, at best, the total flow is ¾ of a gallon a minute which is not a strong flow. The water and sediment pass into the interior of the casing through the perforated portion at the bottom. The water holds the sediment in suspension and as the water level rises above the pump toward its static level, it carries the sediment with it. When the pump was turned on, it failed to adequately function because of the excess sediment. A build up of sediment above the pump caused problems in pulling the pump out and the impediment to removal of the pump increased as the pump was being raised until it could no longer be raised without damaging the casing. The Respondent also asserts that he has no responsibility for the proper operation of the well except to place the pump in the appropriate position based on the static water level and location of the perforated portion of the casing. According to the Respondent, the installation of the casing is solely the responsibility of the driller who is responsible for informing the party installing the pump of the above facts. In this case, the Respondent asserts he never learned of the water source at 350 feet until after he had installed the pump and the problems had developed. Additional testimony was offered on behalf of the Respondent that the perforations should have been placed at a higher level in view of the asserted water flow at 350 feet. This would purportedly have cut down sediment build up in the area of the pump. This testimony is too conjectural to be given any credibility in light of the fact that according to the Respondent’s own theory, excess sediment must have been suspended in the water at least 100 feet above the bottom of the well and 20 feet above the perforated portion of the casing. Not only was the sediment suspended but under the Respondent’s theory, it was carried and built up above the pump to such an extent that the pump cannot be extracted. If this was the case, there is no basis to conclude the offending sediment would have settled out differently or before it reached the level of the pump especially since it is uncertain what the static level for this well is. The Respondent was told the static level was 650 feet, yet there was some water flow asserted at 350 according to the Driller’s Report. The facts which are undisputed show that the pump was pumping muddy water and ultimately would not function properly because of this. Based on the evidence that the pump was placed 100 feet above the bottom of the well, the muddy water had to rise to that height without the sediment settling out. Although there may be other reasons to explain what happened to this well, no evidence was presented to establish or support other findings and it can only be concluded under the specific facts of this case that the quality of the water at pump level and therefore the well as constructed was inadequate for its intended purpose. Coscia testified he issued the CWO because the Respondent installed the pump and it did not work properly, and because the Respondent then tried to extract the pump but got it stuck in the casing. Although the failure of the pump is attributed to the sediment in the water and the quality of the water is a factor over which the Respondent has no control, it would seem that there should be some formal communication or collaboration between the driller and pump installer (if they are separate entities), to determine if the well is producing water and if it is suitable for pumping. The Respondent claims that he has no responsibility for this determination and it is solely in the hands of the driller. This is not accepted. The facts of the case dictate that reliance on another party must be reasonable. In this case the Respondent testified there had been prior difficulties with Rainbow’s wells. Although those problems were not of the same magnitude as this case, they should have put the Respondent on notice that there was a potential for other problems with respect to wells drilled by Rainbow. This is especially true in light of the fact that according to the Respondent, the sediment in the water is so bad that it not only caused the pump to fail but impeded and then stopped the extraction of the pump. Based on prior experience, the Respondent was or should have been aware of the potential for some sedimentation problems. Nevertheless, the pump was installed and left for eight days before being connected. Since installation of the pump is the responsibility of the Respondent, it is concluded the Respondent also has some responsibility to determine that the installation is likely to accomplish its intended purpose and failing to do so, the Respondent is responsible for the failures of the installation. This is a variation of the acceptance of the surface doctrine but it seems appropriate under the facts of the case. It is no defense to say that this problem was the sole responsibility of the driller. There is nothing in the law or logic that supports such a position. If two entities are working toward a common end, it is the responsibility of both to take reasonable steps to accomplish that end. It is not an unreasonable burden prior to installation of the equipment, to make an informed assessment of the water, the well, and their suitability for the equipment which is to be installed. In a project such as this, where the objective of water production cannot be achieved without reliable information, if the Respondent relies on the information provided by the driller, and does nothing to confirm that information, he does so at his own risk and assumes responsibility for certain consequences which may occur for failure to investigate the suitability of installing a specific pump and additional hardware (in this case a $1,050.72 pump, $787.50 for riser pipe and $808.50 for cable). Finally, the fact that the Respondent in attempting to remove the pump which he installed, caused it to become lodged in the well merely adds to his responsibility. Since Rainbow is not a party to these proceedings, none of the findings or conclusions in the instant case can be binding on it. However, certain findings and conclusions had to make reference to Rainbow in order to give a complete picture of the events and to more completely explain the conclusions of this case. Violations of A.R.S. §32-1154(A)(3)/A.A.C. R 4-9-108 and A.R.S. §32- 1154(A)(7) are found. The consequences of the Respondent’s failure to make reasonable inquiry to determine the suitability of the well prior to installing the pump and the problems occurring as a result of the installation, are considered unworkmanlike and wrongful conduct within the context of the cited subsections of the statute. No violation of A.R.S. §32- 1154(A)(23) is found because the likelihood of effective corrective work aside from destroying the present well and installing a new well is problematical at best. Since any further attempt to correct the condition appears fruitless (the evidence suggests that the well will be essentially destroyed if the pump is forced out), and the full consequences of any corrective order cannot be foreseen with any degree of certainty, it is the opinion of this Administrative Law Judge that although the violations require sanctions by the Registrar, any damages which the Complainant is seeking are more appropriately sought in civil court. Recommended Order In view of the foregoing it is recommended commencing on the effective date of the Order entered in this matter that the Class C-29 of the Respondent shall be placed on active suspension for a period of five days followed immediately by a period of 120 days’ disciplinary probation. Done this day, October 13, 1999.

______________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

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