ALJDEC decisions subject to certification as final

06F-2086-ROC · Registrar of Contractors · 2006-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2006 APPEARANCES: Complainants Nadine and James Miele appeared on their own behalf. Peter Damon appeared on behalf of Respondent Pete the Plumber Plumbing Company. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Peter Robert Damon, doing business as Pete the Plumber Plumbing Company, is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: Procedural Matter At the commencement of the hearing, Complainant Nadine Miele made a motion to amend the caption to include her husband, James Miele, as a named complainant. Mr. Damon did not object to the motion. Mrs. Miele’s motion was granted, and the caption now reflects Mr. Miele as a named complainant.

FINDINGS OF FACT 1. Peter Robert Damon, doing business as Pete the Plumber Plumbing Company, is the holder of a Class C-37R license (No. 067725) issued by the Registrar of Contractors (“ROC”). 2. The Mieles contracted with Building Confidence, a general contractor, to perform an extensive remodel of their home. Building Confidence hired Mr. Damon as the plumbing subcontractor for the project. The Mieles moved into their home upon completion of the remodel, in November 2005. 3. On or about March 30, 2006, Mrs. Miele was unable to turn the master bathroom bathtub faucet off. The Mieles contacted Mr. Damon the following morning and received no response. The Mieles continued to leave messages for Mr. Damon for another two days. The following Monday, the Mieles spoke with Mr. Damon, and explained the situation with the bathtub faucet. Mr. Damon advised the Mieles that he was not obligated to perform any warranty work, but that he would schedule them for service on April 11, 2006 and charge them for the service call. 4. On or about April 5, 2006, the Mieles filed a complaint against Mr. Damon with the ROC generally alleging that Mr. Damon was unresponsive to their requests for service. 5. The Mieles contacted D W Plumbing & Maintenance, Inc. (“DW”), a licensed plumbing contractor, to perform the necessary plumbing work. DW advised the Mieles that solder balls were lodged in the valves and that there was an over-pressure problem with the plumbing in that the water pressure should be between 50 and 60 pounds per square inch and it was actually between 95 and 100 pounds per square inch. DW installed a water pressure regulator and repaired the valves, as well as the bathtub faucet. DW charged the Mieles a total of $454.92 for the work performed. See copies of invoices contained in the case file, the contents of which administrative notice was taken. 6. Mr. Damon testified that when he performed his work at the Mieles’ home, the water pressure was “fine” and was 75 pounds per square inch. Mr. Damon further testified that he believes he has no further obligations to the Mieles because he was not contracted by the Mieles, but rather with Building Confidence. Mr. Damon testified that the Mieles terminated their contract with Building Confidence and entered into a Settlement Agreement and Mutual Release of Claims (“Settlement”), under which the Mieles released not only any claims they had against Building Confidence, but any claims they had against Mr. Damon. See Exhibit A. The Settlement states in pertinent part, “The parties mutually release each other from any and all claims, actions, demands, liabilities and causes of action of any kind against the other related to the remodeling contract for the Project and payment or claims of payment therefore.” Id. 7. The Mieles asserted at hearing that the Settlement only pertained to Building Confidence, not the subcontractors utilized by Building Confidence. 8. The Administrative Law Judge finds, based on the credible evidence of record, that Mr. Damon as the subcontractor who performed the plumbing work at the Mieles’ home, is subject to the two year jurisdiction of the ROC and as such was obligated to perform necessary warranty work. The Settlement entered into by the Mieles and Building Confidence has no impact on Mr. Damon’s responsibilities as a licensed contractor as he was not a party to the agreement and the agreement does not incorporate or reference the subcontractors that performed work at the Mieles’ home. CONCLUSIONS OF LAW 1. In this proceeding, the Mieles bear the burden to prove, by a preponderance of the evidence, that Mr. Damon is subject to discipline for violations of A.R.S. § 32-1154(A)(3) and/or (A)(7), as charged by the ROC in its June 6, 2006 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) Rule R2-19-119. 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). 2. The Administrative Law Judge concludes that the Mieles have met their burden of proof as to both of the ROC’s charges. 3. 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 Mr. Damon with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the evidence of record, that Mr. Damon failed to perform warranty work at the Mieles’ home as required of a professional, licensed contractor. Further, Mr. Damon was not subject to the terms of the Settlement, therefore, Mr. Damon was legally obligated to perform warranty work. As such, the Administrative Law Judge concludes that Mr. Damon violated A.R.S. § 32-1154(A)(3). 4. 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.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Mr. Damon committed a wrongful act that substantially injured the Mieles by failing to perform the necessary warranty work, resulting in the Mieles paying $454.92 to another plumbing subcontractor to have the work performed. Therefore, the Administrative Law Judge concludes that Mr. Damon violated A.R.S. § 32-1154(A)(7). 5. Based on the foregoing, it is appropriate for the ROC to impose discipline against Mr. Damon’s Class C-37R license. 6. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Mr. Damon’s Class C-37R license. 7. The ROC’s 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, and preferable to imposing discipline against Mr. Damon’s license without providing a condition to reduce or eliminate same. 8. Upon consideration of all the evidence, the Administrative Law Judge concludes that it is reasonable to condition Mr. Damon’s license suspension upon payment of restitution in the amount of $454.92 to the Mieles.[1] RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Mr. Damon’s Class C-37R license (No. 067725) shall be suspended until the ROC receives written proof that Mr. Damon has paid restitution to the Mieles in the amount of $454.92. If the ROC receives written proof that Mr. Damon has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. 06-2086 shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, December 18, 2006

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of December, 2006, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] An Administrative Law Judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. A.R.S. § 32-1156.01.

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