ALJDEC

01F-2727-ROC · Registrar of Contractors · 2001-11-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2001 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its vice-president and qualifying party, Leon Orgel. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to written contract, Complainant retained Respondent for the purpose of accomplishing specified landscape related work on the front and rear yards of her home. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about March 21, 2001 the parties entered into the aforementioned landscape contract. b. Respondent completed the landscape work on or about April 2, 2001 and Complainant contends that she paid the contract in full. c. Shortly after Respondent completed the landscape project, which also included specified electrical work, Complainant experienced a problem with her electrical system. Her refrigerator went off, ruining all of the food stored in said appliance and her landscape lights would not work. d. In addition to the issue with the electrical system problem, Complainant also observed several existing circular indentations or markings on her existing concrete patio, immediately after Respondent had completed the work on the project. Complainant and her witnesses testified that these marking were not present before Respondent performed its work and were visible right after completion of the landscape installation. e. Complainant filed the instant complaint with the Registrar of Contractors on or about May 18, 2001 and the matter was assigned to one of the Registrar’s inspectors. f. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held. The Registrar’s inspector appeared at the instant hearing and testified to his jobsite findings which were that: i. Respondent had attached a new electrical receptacle to an existing circuit for the home and this work was beyond the scope of his license. In addition, this work required a permit and none had been obtained. ii. Respondent had encased new electrical wiring in standard “PVC,” instead of approved electrical conduit. iii. The new electrical receptacle was not a G.F.C.I. circuit, as required by code. iv. Although he could not determine the exact cause of the circular marks on Complainant’s existing concrete he considered the fact that same were not there prior to Respondent working on the project and appeared immediately at the end of the project. Complainant had advised that she had done nothing to cause the markings and did not have any other construction related work going on at the time that Respondent worked on the landscape project. The inspector observed that there was pitting of the concrete around the edges of the circular markings and had been advised that Respondent had cut flagstone on the concrete in the area wherein the markings were present.

g. As a result of his findings, the inspector issued a Registrar of Contractors’ Corrective Work Order on June 8, 2001 , requiring Respondent to hire a properly licensed contractor to correct the electrical installation and to correct the damaged concrete patio. Notwithstanding the terms of said Agency directive, which only gave Respondent fifteen (15) days to accomplish the required remedial work, Respondent refused to comply with same. In fact, in light of Respondent’s disagreement with the inspector’s findings referable to the damaged patio, it immediately requested an administrative hearing. h. At the time the Corrective Work Order was issued, the working relationship of the parties had deteriorated severely. Although Respondent apparently did not contest the problems with the electrical work, it failed to have same corrected within the time-frame provided in the Corrective Work Order. i. On or about the first part of August 2001, Complainant again experienced a problem with her electrical system, causing her refrigerator to again stop working. At this point, after giving Respondent ample time to comply with the requirement of the Corrective Work Order, she retained the services of a licensed electrical contractor. This contractor found numerous areas of Respondent’s electrical work to be deficient after excavation of the buried electrical work was completed. Complainant took photos of what was found and the photos were shown to the Registrar’s inspector for his comments at the instant hearing. j. After viewing the photos of the buried electrical work, the inspector observed additional deficiencies in Respondent’s work, including electrical wiring that was not 18 inches below grade, exposed romex, underground electrical wiring spliced together with wire nuts, damaged romex, and electrical wiring in the same trench as irrigation tubing. k. Complainant paid the electrical subcontractor $443.78 to repair the deficiencies in Respondent’s electrical work and this sum was not shown to be unreasonable. l. Respondent also was unable to determine how the marks got on Complainant’s concrete. However, Respondent contended that its cutting of the flagstone on the concrete could not have caused such damage and that same was more indicative of a bottle of leaking muriatic acid which could have been moved several times over the concrete. Respondent stated that it did not use any muriatic acid on the job. m. Complainant does not have a pool and has never used any muriatic acid at her home.

3. Based on the foregoing testimony and evidence, it is determined and held that Respondent performed electrical work beyond the scope of its license and in violation of applicable code requirements. In addition, the electrical work was substandard and unacceptable. Respondent’s work on the electrical portion of the project is further deemed to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Considering all of the credible testimony and evidence regarding the issue of the circular marks on Complainant’s concrete, it is determined and held that said record supports a finding that the damage to the concrete is attributable to Respondent’s work on the landscape project.

5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2), and (3); namely Rule R 4-9-108.

2. The Registrar of Contractors’ authority in matters such as presented herein, includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Respondent to Complainant of $443.78 as partial or full restitution for the cost to complete the electrical system repair. Imposing such a condition is more preferable than merely imposing a disciplinary action against Respondent’s license without providing a condition to reduce or eliminate same.

3. The Registrar may order a “restitutionary remedy...as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing”...laws set forth in A.R.S. § 32- 1154A (1) through (24), inclusive. An administrative award of damages is not an unconstitutional exercise of administrative authority where due process procedural rights are protected, where the authority to prohibit conduct has been well defined as in A.R.S. § 32-1154, and where judicial review is available as provided in A.R.S. § 12-901, et seq. Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2nd 430 (App. 1990).

4. In addition to the foregoing, A.R.S. § 32-1156.01 provides, in pertinent part, that “an administrative law judge may recommend that a licensee provide restitution to any person who is injured…by an action of the licensee.”

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-21 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the damaged concrete and paid or tendered the sum of $443.78 to Complainant. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class C-21 license be placed on a period of 90 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, November 2, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors 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