ALJDEC

99F-H0198-ROC · Registrar of Contractors · 1999-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 1999 at 1:30 p.m. APPEARANCES: Complainant appeared on his own behalf; Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony on the issue of Respondent’s alleged failure to perform warranty work and, by the end of the hearing, agreed to settle this complaint. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. The Registrar of Contractors has issued License No. 110568, Class B to Respondent. Respondent was general contractor in construction of Complainant’s residence, into which Complainant and his wife moved on January 20, 1998. Before Respondent poured the foundation for Complainant’s residence, all plumbing that would be encased in the foundation, including the “sanitary T” for the master bathroom, passed inspection. In September 1998, the toilet and lavatory in Complainant’s master bathroom became clogged. Complainant complained to Respondent, who sent out his plumbing subcontractor John Petkovich. Mr. Petkovich had to run the snake from the roof and run hot water through the system to unclog the toilet and lavatory. When he pulled the snake up, he testified he discovered a tampon, followed by grease. Complainant was not charged for Mr. Petkovich’s services, but was warned about flushing tampons down the toilet and pouring grease down the kitchen sink drain. In November 1998, the toilet and lavatory in Complainant’s master bathroom again clogged up. Complainant complained to Respondent, who sent out Mr. Petkovich’s employee Arnold McCoy. Mr. McCoy informed Complainant that he would charge $40.00 for the service, which Complainant reluctantly agreed to pay. Mr. McCoy had to run the snake from the roof and run hot water through the system to unclog the toilet and lavatory. When he pulled the snake up, he testified he found grease on the line. Complainant did not pay Mr. McCoy or Respondent $40.00. In February 1999, the toilet and lavatory in Complainant’s master bathroom clogged up a third time. He called Mr. Petkovich, who refused to make a service call unless Complainant paid for the last service call. Complainant, who is not a licensed plumber, then unbolted and removed the toilet in the master bathroom and brought in a garden hose to use to attempt to unclog it, without success. On February 18, 1999, Complainant made a complaint to the Registrar. The Registrar’s Inspector William Redman testified that he performed a jobsite inspection on September 7, 1999 at 2:00 p.m., at which time the toilet and lavatory in the master bathroom were not being used. All the drains upstream from the master bathroom were working. In Inspector Redman’s opinion, grease probably was not causing the master bathroom lavatory and toilet to be clogged because, it if were, the upstream fixtures should also be clogged. Mr. Petkovich testified that the clogged sewer line is 15’ to 20’ down from the kitchen and that, as grease flows through the pipe and cools, it will harden. For this reason, in Mr. Petkovich’s experience, drains upstream may continue to work even if grease causes drains downstream to become clogged. At the hearing, the undersigned expressed her concerns that Complainant’s attempts to repair the sewer may have voided the warranty and that Complainant could not testify regarding what obstructions, if any, Mr. Petkovich’s and Mr. McCoy’s snakes had dislodged because neither Complainant nor his wife witnessed the services. The parties after discussing the evidence agreed that Respondent would arrange for Complainant’s sewer system to be snaked one more time, Inspector Redman and Complainant would view the service, and Complainant would pay Respondent $80.00 for the second and third service call. Respondent will rebolt the toilet and reinstate the warranty on the plumbing system, if no evidence of damage is uncovered and pointed out to Complainant and Mr. Redman at the third service call. The warranty period shall run until two years after Complainant initially moved into the residence, or until January 20, 2000. Complainant agreed to withdraw his complaint and to consent to the entry of an order dismissing the citation and complaint. However, the dismissal of this administrative action is without prejudice to the filing of a new complaint if Respondent breaches the terms of the parties’ settlement agreement or if, within the warranty period, Complainant obtains additional evidence of a construction defect that causes the toilet and lavatory in the master bathroom to clog up. These administrative disciplinary proceedings are cut short by the parties’ entry into the settlement agreement, which is presented to the Registrar of Contractors for approval and adoption. Consequently, Respondent is advised that any future breach of the terms of the settlement agreement will not only constitute grounds for a new complaint but also will warrant treatment as a circumstance in aggravation. CONCLUSIONS OF LAW 1. Public policy favors settlement of disputes and adverse parties should be free to adjust their differences by entry into agreements or stipulations. 2. The settlement reached and submitted during the hearing of this matter is reasonable and voluntarily made and warrants termination of the hearing and dismissal of the charges contained in the Citation and Complaint. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar dismiss the Citation and Complaint in Case No. 99F-H0198-ROC. Done this day, September 22, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

Registrar of Contractors Mr. Michael P. Goldwater 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