ALJDEC

00F-2209-ROC · Registrar of Contractors · 2000-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2000. APPEARANCES: Complainant was represented by its president, Mark Matyskiel. Respondent was represented by its president and qualifying party, Michael Peck. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 License No. 139509, a Class K-42 roofing contractor’s license, issued by the Registrar. 2. Respondent’s president and qualifying party, Michael Peck, hired Complainant to perform plumbing and tile work for a remodeling project at the residence of Jody Russell. 3. The official records of the Registrar of Contractors reveals that the Complainant is the holder of License No. 128113, a Class C-37R plumbing contractor’s license, and License No. 128115, a Class C-48 ceramic, plastic and metal tile contractor’s license issued by the Registrar of Contractors. 4. The agreement between the parties provided, among other things, that Respondent was responsible for obtaining any required permits for work to be performed. Complainant’s plumbing work did require a permit. 5. On or about December 28, 1999, Respondent made a partial payment to Complainant in the amount of $3,610.00 by a check drawn on an account in Respondent’s name. 6. On or about February 16, 2000, Respondent made another payment to Complainant in the amount of $3,000.00 by a check in Respondent’s name. 7. Respondent is found to have violated local building code requirements by failing to timely obtain the necessary building permit for the remodeling project. When Respondent did pull the required permit after the local building inspector “red tagged” the project, it did so in the name of M S Builders, which is a licensed contractor unrelated to the project. 8. With the exception of a shower valve not being to code requirement, Complainant’s plumbing workmanship met minimum workmanship standards at the time the project was stopped by the building inspector. Complainant left its plumbing work visible and accessible for inspection and remedial work until Respondent caused that plumbing to be covered before inspection. Complainant is no longer responsible for providing access to that work. Complainant accepts responsibility for the deficient shower valve, which should have been discovered by a building inspector if an inspection had been timely performed. The proper pressure balance valve was later installed by Westside Plumbing, Inc., at a cost of $349.66. 9. Respondent exceeded the scope of its Class K-42 roofing contractor’s license when it contracted with Complainant for tile and plumbing work on the subject project. There is credible evidence that Respondent also exceeded the scope of its license by contracting with Westside Plumbing, Inc., for additional plumbing work; T K Enterprises for drywall, tape and texture; and Bowman Contracting for a back patio, front courtyard and steps. 10. Complainant is found not to have abandoned the project after ceasing work when the project was “red tagged” by the local building inspector. At that time Complainant discovered that Respondent was not a licensed general contractor or general remodeling and repair contractor. Despite being requested to do so by the Complainant, Respondent did not give Complainant the property owner’s telephone number so that it could communicate with her about the project. 11. Complainant is entitled to compensation from Respondent in the amount of $3,742.10 ($4,091.76 Complainant claims it is owed less $349.66 paid by Respondent for the installation of the code-required pressure balance valve) for work it performed on this project for Respondent. Respondent’s contention that it can not pay the owed sum because the property owner has withheld funds is unpersuasive. 12. Respondent’s out of scope contracting, its failure to timely obtain the required building permit, and its failure to pay Complainant the owed sum are deemed to be wrongful acts which have substantially injured Complainant.

CONCLUSIONS OF LAW

1. Respondent performed work on the subject project which required it to possess either a Class B general residential contractor’s license or a Class B-03 general remodeling and repair contractor’s license. 2. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(2), (7), (11) and (17). 3. Pursuant to A.R.S. § 32-1154(B), the Registrar of Contractors may impose a range of disciplinary penalties against a licensee for proven violations of A.R.S. § 32-1154(A). The evidence of record supports the Registrar’s imposition of serious disciplinary penalties against Respondent for its above-provided violations of the state’s contracting laws.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class K- license be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent pays the sum of $3,742.10 to Complainant on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place, but instead that Respondent’s Class K-42 license shall be placed on suspension for a period of 7 days, followed immediately by a period of disciplinary probation for 120 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

Done this day, August 23, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater, Director 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