ALJDEC decisions subject to certification as final

07F-H0219-ROC · Registrar of Contractors · 2007-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 5, 2007 APPEARANCES: The Complainants appeared on their own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter came on for a teleconference hearing as scheduled. Based on the competent evidence of record, the following findings are submitted. Findings of Fact 1. The Complainant owns a beauty shop in Bullhead City, Arizona. The structure housing the business suffered severe fire damage and required extensive reconstruction. 2. In May, 2006, the Complainant[1] entered a contract with Respondent, whereby the Respondent would rewire the business for a total cost of $8,500.00. 3. The Respondent completed the rough electrical work which passed city inspection. The Complainant had paid $7,000.00 by this time according to the contract terms. 4. According to the Complainant, the parties believed the electrical system would only require a single 200 ampere (amp) meter. Subsequently, it was discovered that two five ton air conditioning units had not been included in the calculations and amperage would be higher than anticipated and require in excess of a 200 amp meter. The Respondent installed the second 200 meter which initially passed inspection by the city inspector but was then rejected by the Bullhead City Building Department. 5. Contrary to testimony from the Respondent, the Complainant testified he never told the Respondent he could or had obtained permission from the building department to install the second 200 amp meter. The Complainant asked the Respondent to correct the work and the Respondent told the Complainant it would cost extra although the extra amount was not specified. The Complainant refused to pay anything extra and had the work completed by John Hughes (Hughes), who it appears was unlicensed.[2] Hughes installed the 400 amp meter and the work passed inspection. The Complainant paid $2,875.00 to Hughes. 6. The Respondent testified[3] that the Complainant did not want to spend the extra money for a 400 amp meter. After certain calculations, the parties agreed a 200 amp meter could handle the load. Subsequently, the Complainant wanted extra outlets which could place a higher than 200 amp load on the system. This could be resolved by adding a second 200 amp meter rather than installing what at this point would be a more costly 400 amp meter. Although the National Electric Code allows two meters for the same building, Bullhead City ordinances do not allow two separate electrical meters for the same building[4]. The Complainant told the Respondent he could get approval for the two meters from the city building department. Subsequently, the Complainant told the Respondent he had obtained the necessary permission. Bullhead City building inspector Tami Davis (Davis) initially told the Respondent the two meter installation was acceptable and that the electrical work passed inspection[5]. Shortly thereafter, the building department reversed the passed inspection because it did not comply with the city building ordinance. 7. The Complainant filed the Complaint with the Registrar of Contractors (ROC) on November 13, 2006. The Complainant is seeking restitution for the extra cost of the electrical installation.[6] Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154(A)(1), Abandonment; (2), Deviation from plans or specifications; (3)/A.A.C. R4-9-108, Poor workmanship; (7), A wrongful act with substantial injury; (9), Failure to complete for the price stated; (12), Failure to comply with safety laws or codes; (13), Failure in any material respect to comply with Chapter 10, Title 32. 1. The Complainant has the burden of proof by a preponderance of the evidence under Culpepper v. State, 187 Ariz. 431 (1996 App.)[7] and A.A.C. R2-19-119. 2. 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 3. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 4. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 5. The allegations regarding abandonment (A)(1), and failure to complete for the price stated (A)(9), should be dismissed because the evidence shows the Respondent completed work pursuant to the contract ($7,000.00 through the rough electrical). The additional work to complete the project was not done in part because the Complainant did not even discuss the issue of additional cost to correct the meter issue[8]with the Respondent. Instead the Complainant hired an unlicensed contractor to complete the job. 6. There is insufficient evidence that the work which was completed by the Respondent fell below an accepted standard. The allegation of violation of (A)(3)/A.A.C. R4-9-108, should be dismissed. 7. There was no specific evidence with respect to the alleged violation of A.R.S. §32-1154 (A)(12). 8. A.R.S. §32-1154 (A)(13) does not charge an independent violation and should be dismissed. 9. The deviation from plans and specifications to the Complainant’s prejudice (A)(2) is proven. Although Inspector Davis mistakenly approved the work which gives credence to the Respondent’s testimony that he was told by Davis that the building department would approve the work, the fact is it was contrary to the ordinance. Under such circumstances whenever there is a deviation from an applicable building code, any variance should be obtained in writing if a defense is to be considered to have merit. The instant case is a clear example of why this should be done. The city inspector made a mistake which contributed to the problem. Had the variance been properly applied for, the parties would have been informed of the fact that a 400 amp meter was required and the installation of the second 200 amp meter would have been avoided. With respect to the direct conflict in testimony between the Complainant and Respondent (regarding whether the Complainant told the Respondent he had obtained permission from the building department), the evidence is insufficient to establish who is testifying truthfully. 10. There is no evidence of an independent wrongful act under (A)(7). 11. The Complainant is not entitled to restitution because the evidence strongly suggests the work was completed by an unlicensed contractor. It would be a legal absurdity for the ROC to order restitution for what appears to have been unlawful contracting under A.R.S. §32-1164 (B) and which the Registrar is charged with preventing. Recommended Order It is recommended commencing the effective date[9] of the Order in this case that the Respondent’s Class L-11 license be placed on sixty (60) days disciplinary probation.

Done this day, June 15, 2007 ______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The Complainant’s husband was in charge of the rebuilding. For the purpose of this decision, unless the context requires otherwise, references to the Complainant include the Complainant’s husband. [2] The Administrative Law Judge (ALJ) reviewed the ROC website during a break in the hearing and ROC inspector Bill Redmond also attempted to determine if the person was licensed. No license was found. [3] Paragraph five of these findings is a summary of the Respondent’s testimony. [4] According to Bullhead City building inspector, Tami Davis. [5] Davis testified she has been a building inspector for 20 years but made a mistake in passing the two meter system because she forgot about the city ordinance. [6] $1,375.00 above the initial contract price. [7] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [8] Although the responsibility for the meter problem remains to be discussed later in this decision, the Complainant testified he refused to even discuss the issue with the Respondent. The Complainant did not even inquire about how much extra the corrective work would be. This leads to a conclusion that the Complainant may not have been acting in good faith with respect to having the Respondent finish the job. [9] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings.

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