ALJDEC decisions subject to certification as final

07F-G0220-ROC · Registrar of Contractors · 2007-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2007 APPEARANCES: Complainant Nicholas DiPiazza appeared on his own behalf. Respondent Master Plumbing Corporation failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Master Plumbing Corporation 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 Background On April 11, 2007, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on May 14, 2007 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainant Nicholas DiPiazza was present. No one appeared on behalf of Respondent Master Plumbing Corporation (“Master”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Master, or the receipt of any information that would constitute good cause for Master’s absence or delay. No such information was received. Therefore, the hearing proceeded in Master’s absence.

FINDINGS OF FACT Master is the holder of a Class K-37 license (No. 198612) issued by the Registrar of Contractors (“ROC”). Complainants Nicholas and Frances DiPiazza contracted with a general contractor, Tom Norris, to design and construct a custom home in Carefree, Arizona. The contract was a cost plus contract and the DiPiazzas contracted directly with the subcontractors that worked on the project. On or about October 31, 2005, the DiPiazzas contracted with Master for the plumbing portion of the project, including the rough in, final, and trim. The total contract price was $26,295.00. See Exhibit 21. Master performed the rough in plumbing portion of the contract, including the installation of the underground copper supply lines and waste lines, as well as the provision of a lift pump. The DiPiazzas have paid Master in the amount of $16,404.90 for the rough in plumbing portion of the contract. During the course of construction, the concrete subcontractor tore up many of the supply lines. It was further discovered that Master had misplaced all of the waste lines and that although Master had placed the lift pump in the ground, it had failed to connect the lift pump and further had failed to protect it from the natural elements. Mr. DiPiazza contacted Master regarding the fact that the supply lines were damaged by the concrete subcontractor and also regarding the fact that the waste lines were misplaced and the lift pump was not properly installed. During a meeting with Mr. DiPiazza and the concrete subcontractor, Master and the concrete subcontractor entered into an agreement regarding reimbursement for Masters’ work to the supply lines and Master agreed that it would perform the necessary corrective work. Master removed the copper supply lines from the property, however, it failed to return to perform any of the repair work. On August 4, 2006, the DiPiazzas filed a complaint against Master with the ROC. In their complaint, the DiPiazzas generally alleged that Master performed sub-standard work, abandoned its contract, and failed to pay its materials supplier. ROC Inspector R. Craig Williams investigated the DiPiazzas’ complaint. On October 2, 2006, Inspector Williams conducted a jobsite inspection. Present for the inspection were Mr. DiPiazza and Mr. Norris. On October 3, 2006, following the jobsite inspection, Inspector Williams issued a Corrective Work Order (“CWO”) under which the ROC gave Master 15 days to take corrective action with respect to the complaint items as follows: 1) Rough in plumbing not done correctly. The contractor is to resolve this issue with the homeowner by the appropriate means.

2) We seek to get a refund of $8,091.90. The R.O.C. has no jurisdiction over money issues.

Inspector Williams testified at hearing that the supply lines were no longer visible at the time of inspection, however, the waste lines were consistently misplaced, and in some locations by three to four feet. Inspector Williams further testified that the lift pump was not hooked up and was left fully exposed. Inspector Williams opined that the work performed by Master was not performed in a workmanlike manner as the waste lines and lift pump were not installed per plans and specifications. Mr. Norris testified at hearing that he drafted the plans for the home and submitted them to the town of Carefree for approval. Mr. Norris further credibly testified that no changes were made to the plans except to one wall between the study and a closet and that no plumbing was located within that wall and as such, the change to the plans did not affect the plumbing plans and specifications. Mr. Norris further credibly testified that Master was provided with a set of plans and that he personally briefed Tom Importuna of Master on those plans. Mr. Norris testified that Master billed and received payment for the rough in portion of the plumbing work and that Master executed unconditional waivers and releases indicating that Master had paid or would pay its suppliers. Mr. DiPiazza submitted into evidence an Unconditional Waiver and Release on Progress Payment dated April 12, 2006 in the amount of $8,091.90 executed by Master and an Unconditional Waiver and Release on Progress Payment dated May 3, 2006 in the amount of $8,313.00 executed by Master. See Exhibits 22 and 23. Mr. DiPiazza received an e-mail on April 28, 2006 from Mr. Importuna that stated in pertinent part, “The material was paid for over 3 weeks ago.” See Exhibit 29. Mr. Norris credibly testified that in August 2006, approximately four or five months after Master performed the rough in plumbing and was paid for such work, he was contacted by Hughes Supply, Inc. (“Hughes”), Masters’ materials supplier, advising that Hughes would be filing a lien on the property due to non-payment. Mr. Norris advised Hughes that it was unable to file a lien because its contract was with Master, not the DiPiazzas, and further, that Master had been paid in full for its work and supplies. Mr. Norris testified that Master did not perform its work on the project in a workmanlike manner and that he made repeated efforts to bring Master back to the jobsite to remedy the deficiencies and perform the top out portion of the plumbing. Notwithstanding such efforts, Master did not return to the jobsite. Mr. Norris testified that the DiPiazzas were compelled to hire another plumbing subcontractor to perform corrective work and complete the project. This delayed the project. On July 21, 2006, the DiPiazzas contracted with J & H Plumbing, L.L.C. to perform the necessary remaining plumbing work. See Exhibit 26. The DiPiazzas incurred additional costs to cut the concrete slab to correct the misplaced waste lines and to flush the waste lines. Tony Puchta, Superintendent for Tom Norris, testified at hearing that he contacted Masters numerous times to request that it return to the jobsite to correct and complete its work, to no avail. Mr. Puchta further testified that the waste lines were misplaced in every location. Mr. Puchta testified that the waste lines for the Jack and Jill bath were misplaced by three to four feet and in the study bath by approximately eighteen inches, and that all bath and kitchen locations for the waste lines were misplaced. CONCLUSIONS OF LAW In this proceeding, the DiPiazzas bear the burden to prove, by a preponderance of the evidence, that Master is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(2), (A)(3), and/or (A)(7) as charged by the ROC in its January 18, 2007 Citation and Complaint.[1] See Arizona Administrative Code (“A.A.C.”) 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). The Administrative Law Judge concludes that the DiPiazzas met their burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Master failed to complete the project that it contracted to perform without legal excuse for such failure. Therefore, the Administrative Law Judge concludes that Master violated A.R.S. § 32- 1154(A)(1). Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications . . . in any material respect which is prejudicial to another without consent of the owner . . .” The credible evidence of record established that Master departed from plans and specifications by failing to install the waste lines in their proper locations, by failing to install the lift pump, and by failing to protect the lift pump from the elements. Therefore, the Administrative Law Judge concludes that Master violated A.R.S. § 32- 1154(A)(2). 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 Master 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 credible evidence of record, that Master failed to perform its work at the DiPiazzas home in a professional and workmanlike manner as evidenced by the misplaced waste lines and the exposed, un-installed lift pump. Therefore, the Administrative Law Judge concludes that Master 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.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Master committed wrongful acts that substantially injured the DiPiazzas by failing to complete the project, by departing from plans and specifications for the project, and by failing to perform its work in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Master violated A.R.S. § 32- 1154(A)(7). 8. Based on the foregoing, it is appropriate for the ROC to impose discipline against Master’s Class K-37 license. 9. Upon consideration of all of the facts and circumstances presented by this case, including Master’s failure to appear for hearing, the Administrative Law Judge concludes that the ROC should revoke Master’s Class K-37 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Master’s Class K-37 license shall be revoked on the effective date of the Order entered in this matter. 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, May 23, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The ROC did not charge Master with a violation of A.R.S. § 32- 1154(A)(23), “failure to take appropriate corrective action . . . after receiving a written directive from the registrar . . .” As such, the administrative Law Judge will not address this provision at length, suffice it to say, a violation would have been found based upon the credible evidence presented at hearing.

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