ALJDEC

00F-Y0183-ROC · Registrar of Contractors · 2000-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2000 APPEARANCES: Complainant Fred Wallenborn appeared on his own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is whether Respondent Alka Electric is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Robert Mark Alka, doing business as Alka Electric (“Alka”), is the holder of a Class C-11 license (No. 107374) issued by the Registrar of Contractors (“ROC”). According to official ROC records, Alka’s license expired in 1999. On May 3, 2000, Complainant Fred Wallenborn filed a complaint against Alka with the ROC. Mr. Wallenborn alleged poor workmanship by Alka in the installation of a ceiling fan at Mr. Wallenborn’s residence in Yuma, Arizona.

By letter dated May 19, 2000, the ROC, through Inspector C.E. Jorgensen, notified Alka “it is the opinion of this office from the facts now before us that unless the matter is resolved within ten (10) days after receipt of this letter, we may request that a citation be issued against your license so that this matter may be resolved by administrative hearing.” By letter dated June 9, 2000, the ROC, through Inspector Jorgensen, advised Alka that it had received a request for citation against Alka’s license. Alka responded to Inspector Jorgensen’s letter by letter dated June 19, 2000. On June 21, 2000, the ROC issued a Citation and Complaint against Alka, charging violations of A.R.S. § 32-1154 (A)(7) (wrongful or fraudulent act resulting in substantial injury) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). On July 31, 2000, the ROC issued a Notice of Hearing setting this matter for hearing on November 14, 2000, at 1:30 p.m., at 377 Main Street, Suite 101, Yuma, Arizona. The ROC sent copies of the Notice of Hearing to Alka at two addresses, one in Yuma and one in Tucson. Alka failed to appear at the hearing, and further failed to advise the Office of Administrative Hearings of any cause for his failure to appear. The Administrative Law Judge convened the hearing in Alka’s absence after giving Alka an additional 15 minutes after the scheduled hearing time to make an appearance. The Administrative Law Judge finds that Alka’s failure to appear demonstrates a substantial disregard for ROC procedures, and that it should be considered an aggravating factor in the determination of the appropriate discipline to be imposed on Alka in this matter. Mr. Wallenborn appeared and testified in his own behalf. The Administrative Law Judge found Mr. Wallenborn to be a credible witness. Mr. Wallenborn’s testimony revealed the following salient facts: j. In October, 1998, Alka wired and installed a ceiling fan in the Arizona room at the Wallenborns’ Yuma residence. k. On March 18, 2000, while Mrs. Wallenborn was turning the ceiling fan off, the fan’s wall switch sparked and shorted out, and the fan’s motor burned out. l. Jeff Stoner, a licensed electrician in Yuma, repaired the damaged switch and replaced and rewired the fan. According to Mr. Stoner, Alka had improperly wired the switch. Mr. Stoner described Alka’s work at the Wallenborn residence as “unprofessional,” “unorthodox,” “sloppy” and “not per normal specifications.”[1] m. The Wallenborns incurred $200.35 in costs to replace and rewire the ceiling fan. Because Alka failed to appear at the hearing and present evidence, there is no evidence of record that contradicts Mr. Wallenborn’s testimony. The Administrative Law Judge finds that Alka failed to wire the Wallenborns’ ceiling fan in a professional and workmanlike manner, and that Alka’s poor workmanship caused the subsequent short in the wiring. CONCLUSIONS OF LAW In this proceeding, Mr. Wallenborn bears the burden to prove, by a preponderance of the evidence, that Alka is subject to discipline for violations of A.R.S. § 32-1154 as charged by the ROC in its June 21, 2000 Citation and Complaint. 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). The Administrative Law Judge concludes that Mr. Wallenborn sustained his burden to prove that Alka violated A.R.S. § 32-1154(A)(3) and (A)(7). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Alka with a violation of Rule R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. The evidence established that Alka did not perform its work at the Wallenborns’ residence in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Alka violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” Alka committed a wrongful act when it improperly wired the Wallenborns’ ceiling fan. The subsequent failure of Alka’s improper wiring caused substantial injury to the Wallenborns by forcing the Wallenborns to incur time and expense in effecting repairs. On this basis, the Administrative Law Judge concludes that Alka violated A.R.S. § 32-1154(A)(7). Based on the foregoing violations, it is appropriate for the ROC to impose discipline against Alka’s license. Alka’s license is expired. However, that expiration does not preclude the ROC from taking disciplinary action against Alka. A.R.S. § 32- 1154(C) specifically states: “The expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such license.” The ROC’s June 21, 2000 Citation and Complaint advised Alka that in the event of a finding of a violation against it, Alka’s prior disciplinary record of final Registrar of Contractors’ orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Alka in the ROC’s official records. Those records revealed that the instant complaint was the only complaint in the ROC’s current record regarding Alka. The Administrative Law Judge considered this mitigating factor when determining appropriate recommended discipline in this case, and weighed it against the substantial aggravating factor of Alka’s failure to appear for the hearing. The Registrar of Contractors’ authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Alka to Mr. Wallenborn of $200.35, the cost incurred by Mr. Wallenborn to remedy Alka’s deficient workmanship. Imposing such a condition is preferable to imposing a disciplinary action against Alka’s license without providing a condition to reduce or eliminate same. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Alka’s Class C-11 license shall be revoked on the effective date of the Order entered in this matter. If Alka pays or tenders to Mr. Wallenborn the sum of $200.35 on or before the effective date of the Order entered in this matter, and provides credible written proof to the ROC of such payment or tender, then the above provided license revocation shall not take place and this matter shall be closed.

Done this day, December 4, 2000.

______________________________________ Daniel G. Martin Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] Mr. Stoner did not testify at the hearing; therefore, all of his statements are hearsay. However, the Administrative Law Judge admitted this evidence on the grounds that (i) Mr. Wallenborn had made contemporaneous notes of Mr. Stoner’s comments, which he brought to the hearing and used to refresh his recollection, and (ii) Mr. Stoner is a licensed Arizona electrician and there is no evidence in the record that contradicts Mr. Stoner’s statements.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826