ALJDEC

99F-H0170-ROC · Registrar of Contractors · 1999-11-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

| |§| | |John Clayton d.b.a. VALLEY |§|CASE NO.: h99-0170 | |PIONEERS WATER CO.INC., |§| | | |§|DOCKET NO.: 99F-H0170-ROC | |Complainant, |§| | | |§|RECOMMENDED | |-v- |§|DECISION AND ORDER | | |§| | |License No.081515, Class A-16 of|§| | |INTERSTATE UTILITY SERVICE |§| | |(Corp.) |§| | | |§| | |Respondent. |§| | | |§| | | |§| | | |§| |

HEARING: October 26, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared through its attorney, Randall Hodgkinson. The Respondent appeared through its attorney, Dan Oehler. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on October 26, 1999. The Complainant appeared through its attorney, Randall Hodgkinson, and the Respondent appeared through its attorney, Dan Oehler. 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. Respondent, I U S, is the holder of a Class A-16 License issued by the Registrar of Contractors.

2. The Complainant is a rural water company that provides water to over 1000 families in northwest Arizona.

3. This is a commercial matter where the Respondent was retained to remove and repair, or replace, a pump on an approximately 1200 foot deep water well, known as Well No.3, owned and operated by the Complainant.

4. Credible evidence established that the Respondent had performed numerous maintenance and repair services on several different wells for the Complainant over a 25 year period and that the Respondent had previously installed a pump on Well No.3.

5. Credible evidence established that the Respondent had an engineer’s recommendations for the method to be utilized in installing the pump on Well No.3.

6. There was no credible evidence presented to establish that the initial pump installation was unworkmanlike or that the Respondent’s method of installation deviated from the engineer’s recommendations for the installation of the well pump.

7. There was no dispute that Well No.3 was experiencing problems with a check valve and that the Complainant did notify the Respondent, and that the check valve was apparently sticking causing noisy vibrations in the well.

8. There was no dispute that the pump on well No.3 stopped working and that the Complainant requested the Respondent to pull the pump and properly repair it.

9. There was no dispute that the Respondent attempted to pull the pump on well No.3.

10. Credible evidence established that the Respondent attempted to pull the pump for well No.3 and that during the repair effort as the second “stick” of well column pipe was being removed the cable holding the column pipe and the pump broke and the column pipe, the electrical cable, and the pump dropped to the bottom of the approximately 1200 foot well.

11. Credible evidence, presented at hearing, established that the Respondent had not secured the cable holding the column pipe, cable, and pump and that the Respondent had made no provisions in anticipation of the possibility of the cable breaking.

12. The Respondent then made repeated unsuccessful efforts to retrieve the column pipe, the cable, and the pump.

13. The Complainant then retained an alternative licensed contractor to try and retrieve the column pipe, the cable, and the pump from the bottom of the well.

14. The alternative licensed contractor was able to remove the column pipe from the well but was not able to retrieve the cable and pump from the bottom of the well.

15. The alternative licensed contractor then attempted to drill through the cable and pump at the bottom of the well in an attempt to allow the well to continue to be utilized as a water well.

16. The alternative licensed contractor’s attempts to drill through the approximately 1200 feet of copper cable and well pump failed and the Complainant abandoned well No.3 and caused a replacement well to be drilled in the same general location.

17. The Complainant now seeks restitution for its costs in attempting to retrieve the column pipe, cable, and pump, and its costs for drilling a new replacement well. Credible evidence established that the Complainant’s costs for the attempted repairs to well No.3 and the drilling of the new well exceeded the sum of $272,832.48.

18. The Complainant’s request for damages in the sum of $272,832.48 and the Respondent’s assertions that the well should not have been abandoned are found be good faith disputes which will necessarily involve a monetary adjudication between the parties and which falls more properly within the purview of a civil court of competent jurisdiction.

19. The issues of whether the Respondent violated workmanship standards by its failure to properly secure the column pipe, the approximately 1200 feet of copper cable, and the pump and by its failure to properly retrieve any of the items from the well are found to be issues within the purview of the Registrar of Contractors.

20. Credible evidence, presented at hearing, established that the Respondent’s efforts to retrieve the column pipe, the cable, and the pump, from the bottom of the over 1200 foot deep well were extensive, made in good faith, and in accordance with all applicable industry practices and workmanship standards.

21. Credible evidence, presented at hearing, established that a licensed contractor would normally only take cautionary measures to secure a pump when the contractor had reasonable cause to believe that there was a danger of the cable holding the pump breaking and the possible loss of the pump and cable.

22. Credible evidence, presented at hearing, established that the Respondent had prior knowledge of how the pump was installed and that the Respondent was given notice that the well was experiencing noisy vibrations as a result of an apparent problem with a faulty check valve.

23. Credible evidence established that the Respondent was able to determine that the electrical cable to the pump had separated and that the cable was not conducting electricity to the pump because of a break in the electrical cable.

24. Credible evidence, presented at hearing, established that one of the two exposed stainless steel clamps that affixed the electric cable to the well pipe was observably fractured and that the Respondent should then have been on notice that there was a possibility that there were additional problems with the steel clamps holding the cable to the steel casing and that the Respondent should then have made an effort to properly secure the cable and pump to prevent the possibility of the cable and pump falling to the bottom of the well.

25. The Respondent’s actions in failing to take reasonable precautions to prevent the possible loss of the cable and pump are found to reflect adversely upon its workmanship and are found to constitute a wrongful act.

26. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A)(7) (Wrongful Act) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class A-16 License shall be placed on active suspension for a period of days followed immediately by a period of disciplinary probation for a period of 90 days.

Dated this 11th day of November, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Administrative Law Judge M. Douglas

Original mailed this day of November, 1999, to:

Michael P. Goldwater, Director Attn: Valerie Hicks or Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007

Transmitted by:

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