ALJDEC

99F-H0212-ROC · Registrar of Contractors · 1999-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|KINGMAN CABLE VISION, |§|CASE NO.: H99-0212 | | |§| | |Complainant, |§|DOCKET NO.: 99F-H0212-ROC | | |§| | |-v- |§| | | |§|RECOMMENDED | |License No. 108406, Class L-37 of|§|DECISION AND ORDER | |Lon Kelley Abbott d.b.a. |§| | |LON’S PLUMBING CO. (INDIV), |§| | | |§| | |Respondent. |§| | | |§| | | |§| |

HEARING: August 27, 1999, at 8:30 a.m. APPEARANCES: The Complainant appeared through its authorized employee, Greg Rudi. The Respondent appeared his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for hearing on August 27, 1999. The Complainant appeared through its authorized employee, Greg Rudi, and the Respondent appeared on his own behalf. 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 is the holder of a Class L-37 License issued by the Registrar of Contractors.

2. This is a commercial matter where the Respondent was performing underground plumbing work for a restaurant. There was no dispute that during the excavation process the Respondent damaged an underground fiber-optic television cable.

3. The Complainant then asked the Respondent to reimburse it for the estimated cost of replacing the damaged cable.

4. The Respondent declined any responsibility for the damaged cable asserting that the damage was due to the Complainant’s failure to properly “blue stake” the exact location of the underground cable.

5. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors.

6. There was no dispute that the Respondent did ask to have the Complainant “blue stake” the underground cable and that the Complainant did “blue stake” the approximate location of the cable.

7. Credible evidence established that the Complainant informed the Respondent that the cable was approximately 48”-60” deep and encased in a concrete slurry.

8. There was no dispute that ground around the cable was very hard and that both the Respondent’s and the Complainant’s employee had great difficulty in trying to hand dig in the area.

9. Credible evidence, presented at hearing, established that while neither party knew the exact location of the underground cable the excavation was taking place within 24” of the previous ‘blue staking”.

10. Credible evidence established that the Respondent utilized a back-hoe to excavate the ground. The back-hoe operator knew that he was hitting concrete but thought that he was beyond the underground cable and assumed he was hitting a concrete culvert that he expected to hit.

11. There was no dispute that the back-hoe operator cut and dug up a portion of the underground cable. Credible evidence established that the damage to the underground cable was not done with any purposeful intention to damage the Complainant.

12. A.R.S. §40-360.23(A) provides as follows: “’Obtaining information’ as required by this article does not excuse any person making any excavation from doing so in a careful and prudent manner, nor shall it excuse such persons from liability for any damage or injury resulting from his negligence.”

13. A.R.S. §40-360.21(2) defines the term “Careful and prudent manner” as follows: “means conducting excavation in such a way that when it is within twenty-four inches of the underground facility located and marked, by the owner or operator by stakes, paint, or in some customary manner, the exact location is manually determined, and the uncovered facility is supported.”

14. The Respondent’s actions in utilizing a mechanical back-hoe to perform excavation work within 24” of a “blue stake” without knowing the precise location of the underground cable are found to reflect adversely upon the Respondent’s workmanship and to constitute a wrongful act.

15. 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), (23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class L-37 License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly either caused the underground fiber-optics cable to be properly corrected or that the Respondent has properly, as restitution, reimbursed the Complainant for its actual costs of repairing the damaged underground fiber-optics cable.

It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No.H99-0212 shall be closed.

Dated this 13th day of September, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ M. DOUGLAS Administrative Law Judge

Original mailed this day of September, 1999 to:

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

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