ALJDEC decisions subject to certification as final

07F-L0326-ROC · Registrar of Contractors · 2008-01-29

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 16, 2008 APPEARANCES: Complainant: Bernie Trejo, store manager, appeared, pro per. Respondent: Todd Alan Perry, owner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Cliff Corlett appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter convened for hearing via videoconference at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated December 11, 2007. 2. Complainant Rug Hut Ltd. (“Complainant”) is a corporation doing business in Arizona. Bernie Trejo (“B. Trejo”) is an employee of the company. Complainant served as the prime contractor on work performed on a mobile home located at 1905 Victoria Farms, #85, Lake Havasu City, Arizona (“premises/project”) owned by Clyde and Mary Woods (“Homeowners”). 3. Respondent Todd Alan Perry (“Perry”) is an individual doing business as T and M Carpet and Tile Installations (“Respondent”). Perry holds and is the qualifying party for Arizona Contractor’s License No. 207648, Class K-08 (Dual Floor Covering) issued by the Registrar of Contractors (“ROC”) on May 23, 2005. A review of the licensing database maintained by the ROC indicates that this license was suspended June 1, 2007 for non-renewal. 4. Complainant filed a complaint with the ROC on January 9, 2007 wherein it alleged, in pertinent part, that the “shower pan excessively leaking from dam – onto bath floor. [Complainant] reviewed was built w/a wood dam (not concrete) water coming though [sic] wood dam….” 5. Registrar of Contractors Inspector Cliff Corlett (“Corlett”) conducted a jobsite inspection on January 24, 2007 and issued a Corrective Work Order on that date. Therein, Inspector Corlett related that a discrepancy existed between the parties regarding the construction material to be used by Respondent for the subject shower pan, i.e., “5 LF concrete” vs. “5LF.” Corlett determined that, notwithstanding such dispute, there appeared to be a leak through the shower pan which Respondent was required to determine the cause of and repair. Corlett further provided that “should Respondent begin repairs and find conclusive evidence the problem is other than his installation, i.e., grout, pan liner, dam, etc. he should immediately contact the Complainant and this office to verify cause.” 6. On February 5, 2007, Respondent filed a correspondence with the Registrar of Contractors wherein he advised, inter alia, that he had performed testing on the project’s shower on January 28, 2007 which revealed that the “water is apparently leaking from the drain and seeping under the liner, not trough [sic] the liner.” Respondent also asserted that such findings were verified by the homeowner, Mr. Woods. As a result, Respondent “contest[ed] the complaint filed against [him].” 7. On March 26, 2007, Complainant filed a request for hearing wherein it also related that, due to Respondent’s refusal to perform the necessary repair work on the subject shower, Complainant “incurred material and labor charges in order to complete the ‘Corrective Work Order.’” 8. On July 12, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. L07-0326 charging Respondent with possible violations of A.R.S. §32-1154A 7, 17, 23 and 3 (name, R4-9-108, the workmanship rule).[1] 9. Respondent filed an answer on July 26, 2007 wherein he again asserted, inter alia, his January 26, 2007 testing established that the subject leak was emanating from the drain under the house and not the shower pan in question and, therefore, evidenced that he did not ignore Inspector Corlett’s January 24, 2007 Corrective Work Order. 10. At the hearing, B. Trejo testified on behalf of Complainant and submitted Exhibits C-1 through C-6 which were marked, admitted and considered. Rudy Trejo (“R. Trejo”) and Clyde Woods (“Woods”) also testified on behalf of Complainant. 11. Perry testified but presented no exhibits. 12. Inspector Corlett testified on behalf of the Registrar of Contractors and described his observations and conclusions on his initial January 24, 2007 jobsite inspection. 13. Sometime in 2006, Respondent performed certain work on the subject premises which included the installation of a shower pad.[2] 14. Complainant asserts that Respondent failed to install the subject shower pad correctly which resulted in leakage and damage to the premises. 15. Due to Respondent’s alleged failure and/or refusal to remedy the leak, Complainant undertook to cause such repair and seeks reimbursement of $1,262.23 for labor and material therefor. (Exhibits C-1, C-3, C-4, C-5 and C-6) 16. R. Trejo, an independent contractor, performed the repair work for Complainant and testified as to the nature and scope of his work. (Exhibit C-1) R. Trejo described several items of substandard work performed by Respondent including, without limitation, a pan liner cut too short, weep holes covered with tape and liner screwed to the side walls below drain in the water line, one or all of which could cause the leak. R. Trejo also related that he went under the premises and observed no water damage coming out of drain and that no leakage occurred after he completed his remedial work. 17. Inspector Corlett testified that as of his January 24, 2007 jobsite inspection, the shower pad appeared to be leaking. Corlett further testified that, based on Respondent’s February 4, 2007 letter wherein he related that he had performed no remedial work in response to the Corrective Work Order as his testing had found that the leak was plumbing/drain related, no pre-hearing jobsite was conducted. Inspector Corlett also related that did not know the cause of the leak in question. 18. Perry testified that he installed the subject shower pad correctly and in accordance with the parties’ contract. Perry further related that, as set forth in his February 4, 2007 letter to Inspector Corlett, his testing on January 26, 2007 revealed no leakage from the shower pad itself but from underneath by the drain. 19. C. Woods was present with Perry at the premises on or about January 26, 2007 when the latter conducted his own test. C. Woods testified that Perry did nothing different that R. Trejo did at the initial jobsite inspection and that a ½ hour after pouring a 5 gallon bucket of water into the shower pad, no leakage was observed. C. Woods further stated that the shower leaked the next time he took a shower. C. Woods acknowledged that he observed no water leaking when Perry placed tape over the drain but water was present when R. Trejo did so because the Woods had showered before the parties conducted that test. 20. C. Woods also related that sometime after Perry performed his test a “balloon” test was conducted on the shower drain by Marty from Trophy Homes, the premises’ manufacturer, which resulted in leakage from the drain itself. …

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. L07-10326 charged Respondent with possible violations of A.R.S. §32-1154A 7, 17 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

…

17. Knowingly contracting beyond the scope of the license or licenses of the licensee. …

23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.

… 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (23) and/or (3) and A.A.C. R4-9- 108, the workmanship rule, as it pertains to the installation of the subject shower/shower pad. 5. It is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7), as charged in the issued Citation in Case No. L07-0326. 6. It is also determined and concluded that Complainant failed to establish by the requisite weight of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (17) as Complainant presented no evidence regarding this issue.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. L07-0326 be dismissed.[3] Done this day, January 29, 2008.

_______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By __________________________ ----------------------- [1] It must be noted that page 2 of the instant Citation and Complaint specifically lists subparagraph 7, 17, 23 and 3 of A.R.S. §32-1154A yet page 3 contains the language of subparagraphs 7, 17, 23 and 12. Upon inquiry by the Administrative Law Judge, Inspector Corlett related that page 3 contained a typographical error and the correct citations should be as found on page 2. [2] Neither party submitted a copy of the contract between them. Complainant’s complaint indicates that the contract was dated and work performed March 17, 2006. [3] 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 in this matter will be forty (40) days from the date of that certification.

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