ALJDEC decisions subject to certification as final

06F-2501-ROC · Registrar of Contractors · 2007-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 22, 2006 and December 22, 2006. APPEARANCES: Alan George and Connie George appeared personally. Kentec Builders, LLC was represented by its member and qualifying party, Kent Brady. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Kentec Builders, L.L.C. (“Respondent”) is the holder of License No. 191815, a Class KB-02 contracting license issued by the Registrar of Contractors. 2. Alan and Connie George (“Complainants”) are the owners of a residence located at 26261 North 26th Street, Scottsdale, Arizona. 3. On or about June 1, 2005, Complainants accepted Respondent’s written Proposal & Contract, which provided for the following:

Kentec Builders proposes to furnish labor and materials to complete the following:

Construct addition to residence according to plan and proposal (Attached).

All of the above work is to be completed in a workmanship manner according to standard practices for the sum of Forty Three Thousand Six Hundred Thirty Dollars ($43,630). Payments to be made as follows: 10% down payment at time of contract acceptance, 20% deposit upon start of construction and additional payments made as the work progresses to the value of 100% of work completed. (Emphasis in the original).

4. Respondent’s scope of work, which was attached to the above described proposal, was the following:

1) All Demolition and hauling 2) Addition to existing home per plan. Approx. 540 SF. 9ft. by length of house 3) New HVAC to accommodate addition and existing master bedroom 4) Enlarge existing Closet in Master Bedroom 5) Frame and finish roofing to allow storage above new addition 6) Excludes flooring 7) 2X6 framed exterior walls 8) All interior finish work and painting 9) All exterior stucco, roofing windows, etc. to match existing 10) All electrical & Finish (Excludes light fixtures, owner provided) 11) All necessary plan design and submittal for building permit -Excludes cost to City of Scottsdale (sic) for Building Permit (Emphasis in the original)

- Relocate existing single gate - Flagstone extra - Install owner provided solar tubes

5. On September 14, 2005, the City of Phoenix issued a Building Permit for the subject project, listing Respondent as the contractor. The scope of the Building Permit was structural, electrical and mechanical work. 6. During the project, Respondent relocated outside plumbing from the side of the house where the addition was placed to the front of the house. Respondent also did plumbing work to the main supply line into Complainants’ residence. An existing polybutylene water line was discovered during the work that runs underneath the addition. Respondent contends that the polybutylene water line could not have been reasonably discovered because of its depth in the area of the new addition. The polybutylene water line does not meet city code requirements. 7. During Respondent’s period of work, Complainants sustained interior flooding after Respondent performed plumbing work outside the house. 8. After Respondent completed its work, Complainants filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 9. In response to the filed complaint, the Registrar of Contractors’ assigned inspector, Bob Davies, performed a jobsite inspection on June 29, 2006 to view the alleged violations. 10. As a result of his jobsite inspection, Inspector Davies issued a Corrective Work Order dated June 30, 2006. Inspector Davies opined that Respondent had performed plumbing work that did not meet City of Phoenix code requirements because the Building Permit did not include plumbing work, and that Respondent’s plumbing work had not been inspected as required, which resulted in leaks and in the polybutylene water pipe now being located underneath the new addition, in violation of city code requirements. The Corrective Work Order required Respondent to take timely obtain a necessary building permit for the plumbing work and take all necessary action to bring the plumbing within city code requirements. 11. The Corrective Work Order also noted that the electrical subpanel may be over-fused. Respondent was required to timely take action to insure that the breaker and wire are proper and that the electrical subpanel meets city code requirements. 12. Respondent failed to timely comply with the June 30, 2006 Corrective Work Order. 13. On September 1, 2006, Ray Scarla, the City of Phoenix General Inspections Field Supervisor, performed an inspection at Complainants’ residence. As a result of that inspection, Inspector Scarla issued the following Inspector’s Notice:

1) Your overcurrent device protecting feeders to the garage subpanel is the wrong type and oversized. #6 awg copper feeder requires no greater than a 60 amp breaker. 2) Poly butylene water supply cannot run under house slab.

14. Immediately after receiving Inspector Scarla’s Inspector’s Notice, Complainants had the electrical subpanel repaired due to the serious safety issue. 15. Respondent is found to be responsible for the polybutylene water supply running underneath the new addition in violation of city code. Respondent’s contention that it had no knowledge that there was an underground water supply is not credible. It is noted that Respondent knew there was a water supply along the side of the house where the new addition was constructed because there was existing exterior plumbing that had to be relocated to the front of the house. There is no evidence that Respondent made any attempt to assure that there was no underground plumbing beneath the addition. There was no new plumbing work added to the new addition. 16. Respondent’s failure to comply with city code requirements for the plumbing work and its over-fused electrical subpanel violated minimum workmanship standards. 17. Respondent’s failure to comply with city code requirements, its installation of the over-fused electrical subpanel, its failure to comply with the Corrective Work Order and its failure to meet minimum workmanship standards are wrongful acts that have substantially injured Complainants. 18. The official records of the Registrar of Contractors reflect that Respondent’s KB-02 license has been suspended by operation of law since September 22, 2006 for lack of bond. The first day of hearing on November 22, 2006 recessed early and was rescheduled to December 22, 2006 to allow Respondent additional time to get its license reinstated by posting the required bond. It did not do so. 19. The Registrar of Contractors’ records also reflect that Respondent has open complaints against its license and three resolved/settled/withdrawn complaints.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(2), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s Class KB-02 license by operation of law does not deprive the Registrar of Contractors from imposing disciplinary action against that license for the above proven violations. As a result of Respondent’s failure to meet minimum workmanship standards, its failure to comply with city code requirements, especially the serious safety issue caused by the over-fused subpanel, and Respondent’s failure to comply with the Registrar of Contractors’ Corrective Work Order, it is concluded that the evidence of record supports the revocation of Respondent’s Class KB-02 license.

RECOMMENDED ORDER

Respondent’s License No. 191815 shall be revoked on the effective date of the Order entered in Case No. 06-2501. 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, January 11, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

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

By ___________________________

-----------------------

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