ALJDEC

00F-2641-ROC · Registrar of Contractors · 2000-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On September 25, 2000, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Michael Pestano appeared on his own behalf. Larry Milligan and Linda Kantor appeared on behalf of the Respondent. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT 1. The Complainant is the owner of a home located at 14425 N. 27th Place, Phoenix, Arizona (the “Home”). Linda Kantor is the Respondent’s Office Manager. Larry Milligan is the Respondent’s Field Manager. The Complainant hired California Pools to construct a pool in the Home’s backyard. California Pools hired the Respondent to perform electrical work for the pool.

2. The Complainant testified that the Home has a block wall that separates the Home’s backyard from the Home’s front yard. The Complainant testified that the Home’s block wall varied in height from two feet high to five feet high in March of 2000. The Complainant testified that he rebuilt the block wall to six feet high after the vandalism and theft (discussed below) occurred in March of 2000.

3. The Complainant testified that the block wall has a locked gate that opens to the Home’s backyard. The Complainant testified that the Home’s electrical box is located on the Home’s wall about six feet from the gate. The electrical box is located outside of the gate (towards the front yard) and has a master paddle lock on it.

4. The Complainant testified that he was not residing at the Home in March of 2000. The Complainant testified that on Friday, March 17, 2000, he went to the Home to unlock the gate so that the pool contractor would have access to the Home’s backyard.

5. Mr. Milligan testified that the Respondent sent a crew to the Complainant’s Home on Friday, March 17, 2000, to complete the electric work for the Home’s pool. Mr. Milligan testified that the Respondent’s crew was at the Complainant’s Home from 7:00 a.m. to 10:00 a.m. The Respondent conceded that a crew member cut the Master paddle lock on the electrical box. See Complainant’s Exhibit 4. Mr. Milligan testified that the Respondent has previously cut paddle locks on homeowners’ electrical boxes to avoid costly delays (for the homeowner and general contractor) regarding the installation of a pool. Mr. Milligan testified that homeowners usually do not care about a $10.00 paddle lock when it comes to keeping the installation of their pool on schedule.

6. Mr. Milligan testified that the Respondent will usually replace the paddle lock when it is finished at the job site or the general contractor will inform the homeowner that the cut paddle lock has not been replaced. The Respondent did not replace the paddle lock on the Complainant’s electrical box. The Complainant testified that he never received a phone call from Sun Pools regarding the cut paddle lock.

7. Mr. Milligan testified that the Respondent’s crew shut off the Home’s electricity to complete the electrical work for the pool. Mr. Milligan testified that his notes indicate that the electricity was turned on when the Respondent’s crew departed the Home at about 10:00 a.m. on Friday, March 17, 2000.

8. The Complainant testified that he returned to the Home at approximately 2:30 p.m. on Friday, March 17, 2000. The Complainant testified that he closed and locked the Home’s gate. The Complainant testified that he did not notice anything unusual at the Home. However, the Complainant testified that he did not inspect the Home’s backyard.

9. The Complainant testified that he returned to the Home on the morning of Saturday, March 18, 2000. The Complainant testified that he noticed that the paddle lock on the electrical box had been cut and was laying on the ground. The Complainant testified that the electricity was turned off. The Complainant testified that there was no damage to the Home’s gate or the lock on the Home’s gate. The Complainant testified that he inspected the Home’s backyard and found that a shed had been vandalized. See Complainant’s Exhibit 2. The Complainant testified that a barbecue grill was stolen from the shed.

10. The Complainant testified that security cameras and a security horn/siren were ripped off the Home’s walls. The Complainant testified that the Home’s outdoor hanging light fixtures were also stolen. The Complainant testified that the storage shed door had to be replaced. The Complainant testified that he suffered about $1,600.00 in damages.

11. The Complainant testified that the Home’s security system has a backup battery for electrical outages. The Complainant demonstrated at the hearing in this matter that the backup battery is currently dead. However, it is not clear from the record if the battery was dead at the time of the vandalism and theft. The Complainant theorized that the battery died because the Respondent failed to turn on the electricity on March 17, 2000. However, the Complainant conceded that the battery should have lasted 24 hours.

12. The Complainant testified that the Respondent’s employees knew that the Complainant was not residing at the Home. The Complainant theorized that one of the Respondent’s employees cut the paddle lock on the Home’s electrical box so that he (or a non-employee thief) could disarm the security system by turning off the electricity. The Complainant further theorized that the employee jumped the two foot block wall and vandalized the shed in the Home’s backyard. The Complainant theorized that the employee destroyed the Home’s security system (i.e., cameras and siren) to avoid detection in the event that there was a backup battery for the security system.

13. Mr. Milligan testified that the Home’s security system’s backup battery should have kicked in when the electricity was turned off. Mr. Milligan testified that a security system is designed with a backup battery for situations just like this one. Mr. Milligan testified that the Complainant should have regularly checked the backup battery. Accordingly, Mr. Milligan testified that it is irrelevant that the paddle lock was cut by the Respondent. Mr. Milligan argued that the security system should have worked regardless of the cut paddle lock on the electrical box.

14. Mr. Milligan testified that several contractors worked at the Complainant’s Home. These contractors included California Pools and Creative Stone. Mr. Milligan testified that the employees for these contractors also knew that the Complainant was not residing at the Home.

15. Mr. Milligan testified that the Respondent offered to pay the Complainant $50.00 to replace the cut paddle lock. See Complainant’s Exhibit 3. Mr. Milligan testified that the Complainant refused the $50.00. The Phoenix Police Department issued a police report in this matter. See Complainant’s Exhibit 1. At the time of the hearing in this matter, the Respondent’s employees had not been charged with a criminal act.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32-1154(A)(3) and R4-9-108. The Respondent failed to perform in a professional and workmanlike manner when it cut the paddle lock on the Home’s electrical box without the permission of the Complainant. The Respondent further failed to perform in a professional and workmanlike manner when it failed to replace the paddle lock on the Home’s electrical box. The Respondent’s failure to replace the paddle lock created the potential for vandalism of the electrical box.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7). The Respondent committed a wrongful act when it cut the paddle lock on the Home’s electrical box without the permission of the Complainant. The Respondent further committed a wrongful act when it failed to replace the paddle lock on the Home’s electrical box.

4. The Respondent’s wrongful act must result in the Complainant being substantially injured. A.R.S. §32-1154(A)(7). The Complainant theorized that (1) the Respondent’s failure to replace the paddle lock . . . (2) allowed the thief to open the electrical box and turn off the electricity . . . (3) which allowed the thief to disarm the security system . . . (4) which resulted in the vandalism and theft at the Complainant’s Home. However, there are problems with the Complainant’s theory that include the following: a. The Complainant is responsible for the backup battery for the security system. If the backup battery had worked properly, then the lack of electricity for the security system would have been irrelevant; b. The fact that the backup battery failed to work properly shows that the entire security system may not have been working properly. Thus, the lack of electricity would have been irrelevant; c. The record shows that the backup battery may have been working at the time of the theft. This would explain why the security equipment (i.e., cameras and siren/horn) were ripped from the Home’s walls. If true, then the lack of electricity would have been irrelevant. d. There is no guarantee that a properly working security system would have prevented the vandalism and theft at the Home. The thief had easy access to the shed by jumping over a two foot block wall; and

e. A paddle lock is a minor obstacle for a thief who is focused on vandalism and theft. In other words, the Home could have been vandalized even if the paddle lock had been replaced on the electrical box.

5. Based upon the forgoing, the undersigned Administrative Law Judge concludes that insufficient evidence was presented showing that the Respondent’s aforementioned wrongful acts directly resulted in the vandalism and theft at the Complainant’s Home as required under A.R.S. §32- 1154(A)(7). The Complainant has only presented a “theory” regarding the cause of the vandalism and theft at his Home. However, A.R.S. §32- 1154(A)(7) requires more than theoretical conjecture.

6. The undersigned Administrative Law Judge concludes that grounds exist to discipline the Respondent’s Class C-11 license pursuant to A.R.S. §32- 1154(A)(3).

RECOMMENDED DECISION AND ORDER

It is recommended that the Respondent’s Class C-11 license shall be placed on disciplinary probation for a period of thirty (30) days commencing on the effective date of this Order (thirty-five days after the date of mailing by the Registrar). Done this day, September 29, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Michael P. Goldwater 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