ALJDEC decisions subject to certification as final

06F-T1202-ROC · Registrar of Contractors · 2007-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 19th, 2007; 9:00 a.m. APPEARANCES: Complainant, Ms. Avis Adkins, appeared and represented herself. Respondent, Colt Construction, Inc., doing business as Bert’s Electric and Plumbing Co., was represented by Mr. Craig Molling, General Manager. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Colt Construction, Inc., doing business as Bert’s Electric and Plumbing Company, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-37R License number 051883. 2. In early 2006, Complainant was trying to help her parents prepare their Tucson home to be put on the real estate market when they detected the odor of gas in the house. The gas was shut off by Southwest Gas Company. Complainant went to the City of Tucson and obtained a permit to perform needed work, and she and her family attempted to remedy the gas leaks themselves. After making that attempt they contacted the City of Tucson to inspect what they had done. 3. The City of Tucson Inspector inspected and failed the work that had been performed by Complainant. The Inspector made a list of the prospective work items that should be done in order for the house’s electrical to receive a passing grade, and gave this list to Complainant. 4. Complainant contacted Respondent to come to the home and perform the work on the list. Respondent sent an employee named Patrick to the job site. Complainant presented him with the list from the city Inspector. The list included the following statement: “Provide City approved gas isometric of system when adding gas fixtures.” 5. After this point in time the parties’ respective testimonies diverge. Patrick did not appear and testify at the hearing. According to Complainant’s testimony, she gave Patrick the list written by the Inspector, and asked him to do the work required in accordance with the list. She testified that Patrick said he was not acquainted with the term “isometric.” Patrick fixed some gas leaks, and a bill was sent to Complainant. 6. The gas leaks continued, and Respondent’s worker came and second time and fixed the leaks. 7. The house failed the inspection needed to have the gas turned on again. Respondent’s General Manager, Mr. Craig Molling, then went to the house and prepared an isometric. As it turned out the isometric was not correctly done pursuant to current code. However, that isometric was never used by Complainant as she hired others to perform the work needed to restore gas service to the house. Another appropriately licensed contractor performed the isometric and the house’s gas service was restored after passing inspection.

8. Complainant believed that she had been treated “shoddy” by Respondent and filed the instant Complaint with the Arizona Registrar of Contractors on June 6th, 2006. The Complaint was assigned to Registrar of Contractors Inspector Bob Gibson, who, after conducting a job site inspection, issued a letter to both parties advising them that since another contractor had completed the gas line improvement after Respondent, he could not say that any of the Respondent’s work was unsatisfactory, and any issues about possible restitution must go to an administrative hearing. Thus he did not issue any Corrective Work Order. 9. Complainant requested the hearing, which was duly scheduled, noticed and held. 10. In addition to fixing the gas leaks, which appear from the evidence to have been done correctly, the Respondent evidently installed some sort of flex pipe which Complainant contends was the wrong size or variety. There is insufficient evidence in the record to find that this occurred. 11. The parties have no written contract stating what they agreed to do, which makes findings problematical in that regard. Complainant contends that the Respondent should have performed a proper isometric in the beginning, but the City list, which Complainant contends is what she told Patrick to do, states that an isometric is needed “when adding gas fixtures.” Respondent’s credible evidence is that it was contacted to fix gas leaks, and Patrick was not told about any additional gas fixtures that had been added, and was not expressly told to prepare an isometric. 12. Ultimately, Respondent did prepare an isometric, after having later found out that one was needed. The isometric was, in fact, prepared using outdated code requirements, but no work was performed using it as a guide as Complainant by that time had lost confidence in Respondent and obtained another isometric from the subsequent contractor, and the work was performed by that contractor in accordance with it. Respondent refunded the money it had received from Complainant for the second service call to fix the gas leaks that should have been fixed properly the first time. After the second visit the gas leak corrections were inspected by a pressure test and evidently passed inspection.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, and 3 (namely A.A.C. R4-9-108, Workmanship Standards). 3. Respondent‘s isometric did depart from current code, but Respondent was not prejudiced by the departure because it was not used, and she was not billed for it. Thus there was no violation of A.R.S. 32-1154.A.2 by Respondent in this case. 4. The work that Respondent did do evidently passed inspection. Thus there can be no conclusion that Respondent violated A.R.S. 32- 1154.A.3 in this case. 5. There is insufficient evidence to conclude that Respondent violated A.R.S. 32-1154.A.7 (wrongful or fraudulent) in this case.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T06-1202, together with the Complaint on which it is based be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification.

Done this day, January 29th, 2007.

______________________________________ Grant Winston Administrative Law Judge

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

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

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488