ALJDEC decisions subject to certification as final

07F-M1424-ROC · Registrar of Contractors · 2008-02-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2008 APPEARANCES: Angel Romero appeared on behalf of Complainant Buildmar Construction Incorporated. Philip Wooten, Esq. represented Respondent A N P Electric, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent A N P Electric, Inc. (“ANP”) 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: FINDINGS OF FACT 1. ANP is the holder of a Class K-11 license (No. 189871) issued by the Registrar of Contractors (“ROC”). Anthony Pelletiere is ANP’s qualifying party. 2. Buildmar Construction Incorporated (“Buildmar”) is the general contractor for the two construction projects at issue in this consolidated matter. Both of the projects are rehabilitation projects, one for the City of Phoenix, the “62nd Drive” project, and one for the City of Mesa, the “Olive Street” project. 3. Buildmar hired ANP to perform electrical work on the projects on an hourly basis. 4. On January 10, 2007, Buildmar filed a complaint against ANP regarding the Olive Street project with the ROC alleging in pertinent part the following: ANP Electric, Inc. was hired to complete the items identified in the attached scope of work which includes the installation and interconnection of smoke detectors. a) Smoke detectors were not installed to code and currently unsafe; b) Several living room/kitchen circuits, in addition to front entry lighting were reported by Buildmar to ANP as not operational; c) During the installation of wiring in the attic the return air ducts were severely damaged by ANP; and d) ANP’s invoices are vastly overstated and prepared in an attempt to defraud. ANP has no agreement with Buildmar for the payment of fuel charges or an hourly rate of $50.00.

5. ROC Inspector Dennis Cook investigated Buildmar’s complaint. 6. On April 10, 2007, Inspector Cook conducted a jobsite inspection. Present for the inspection were Angel Romero, qualifying party for Buildmar, Anthony Pelletiere, Ed McGrath, foreman for the project, and Philip Wooten, Esq. 7. On April 12, 2007, following the jobsite inspection, Inspector Cook issued a letter to the parties advising of the following: Upon filing a complaint with this agency it is incumbent upon the complainant to show proof of violation by a contractor. This agency cannot request a citation against a contractor’s license unless sufficient evidence is submitted or otherwise obtained to justify such action. Therefore, it appears appropriate that we close your complaint for the following reason(s):

There was insufficient evidence to confirm the responsibility of ANP Electrical, Inc. for any incomplete or defective wiring at the jobsite. There was no evidence to show that ANP Electrical, Inc. damaged ductwork in the attic.

See Exhibit A.

8. On or about January 10, 2007, Buildmar filed a complaint against ANP regarding the 62nd Drive project with the ROC alleging in pertinent part the following: Respondent ANP Electric, Inc. was contracted to complete the electrical portion of the Scope of Work for items described in the attached exhibit “A” and exhibit “B” provided by the City of Phoenix Housing Services. Reference is made to the requirement that the work is to be a “complete re-wire of the entire structure”. a) ANP failed to install Arc-fault receptacles throughout the structure as required by the scope and code. Non-Arc-fault receptacles were installed in conjunction with the lighting circuits. b) ANP re-used old wiring for generally all switch circuits and lighting. The scope and permit require a complete re-wire. c) ANP installed flood lighting fixtures directly to the structure’s wood surface without the use of proper junctions bringing live wiring in direct contact with a combustible surface; d) ANP installed new wiring to a pull chain light fixture in the storage room without a junction; e) Exterior GFI receptacles are not operational; f) Failure to install the proper fan rated ceiling junctions; g) Missing Neutral wiring at kitchen ceiling circuit; h) Labor hours for the panel change-out are overstated by a factor of more than 50%; i) Labor hours for the improper re-wire are overstated and should be rendered not payable in any form; j) [ANP] and Buildmar have no agreement or understanding to compensate for fuel usage; and k) [labeled as (l) in complaint] ANP and Buildmar have no agreement or understanding to pay the labor charge of $50.00 per hour.

9. ROC Inspector Warren Duncan investigated the 62nd Drive complaint. According to the case file, the contents of which administrative notice was taken, Inspector Duncan conducted a jobsite inspection on March 1, 2007. Present for the inspection were Mr. Romero, Mr. Pelletiere, and Mr. Wooten. 10. On March 22, 2007, following the jobsite inspection, Inspector Duncan issued a CWO under which the ROC gave ANP 15 days to take corrective action as follows: Complaint #1 Contractor did not run ARC fault circuit per 2005 NEC. Contractor to correct by appropriate means.

Complaint # 2 House was not completely re-wired with new romex. Contractor to correct by appropriate means.

Complaint #3 Stove wiring not re-wired. Contractor to correct by appropriate means.

Complaint #4 Contractor did not mount exterior light fixtures properly. Fixtures removed prior to jobsite inspection. Inspector could not make determination. No action required by contractor.

Complaint #5 Ceiling fixture in storage room not properly fastened to ceiling, no fixture box. Contractor to correct by appropriate means.

Complaint #6 Contractor did not install proper boxes at ceiling fans. Complainant did not demonstrate deficiency. No action required by contractor.

Complaint #7 Missing neutral wire at kitchen circuit. Corrected by others. No action required by contractor.

Complaint #8 Service panels not labeled properly. Contractor to correct by appropriate means.

Complaint #9 Contractor overstated labor hours, over charged per hour, charged for fuel usage. No determination by inspector.

11. According to the case file, on or about March 2, 2007, Buildmar filed an addendum to the complaint. Inspector Duncan conducted another jobsite inspection regarding the addendum items on May 9, 2007. 12. On June 28, 2007, following the jobsite inspection, Inspector Duncan issued another CWO to ANP under which the ROC gave ANP 15 days to take corrective action as follows: 1. Fixture boxes not installed for outdoor flood lights. Addressed in original complaint. 2. No override switch for outdoor lights as per code. Contractor to correct by appropriate means. 3. Front flood light at wrong location. Not shown on plans or specifications. No action required by contractor. 4. A. Contractor to re-install flood lights removed by others. Inspector did not find contractor responsible. No action required by contractor. B. Contractor to install stove circuit. Addressed in original complaint. C. Contractor to do complete re-wire. Addressed in original complaint.

13. On or about April 24, 2007, Buildmar filed a two and a half page addendum to its complaint regarding the Olive Street project. See Exhibit 29. 14. Inspector Cook conducted a second jobsite inspection on June 6, 2007. Present for that inspection were Mr. Romero, Mr. Romero’s son, Jeremy, Mr. Pelletiere, and Mr. Wooten. On June 12, 2007, following the jobsite inspection, Inspector Cook issued a letter to the parties advising of the following: Upon filing a complaint with this agency it is incumbent upon the complainant to show proof of violation by a contractor. This agency cannot request a citation against a contractor’s license unless sufficient evidence is submitted or otherwise obtained to justify such action. Therefore, it appears appropriate that we close your complaint for the following reason(s):

There was insufficient evidence to confirm the responsibility of ANP Electrical, Inc. for any incomplete or defective wiring.

15. On January 22, 2008 at 3:00 p.m., a telephonic pre-hearing conference was held. Present for the pre-hearing conference were Mr. Romero and Mr. Wooten. On January 28, 2008, the Administrative Law Judge issued a Pre- Hearing Order advising the parties in pertinent part of the following: Denying ANP’s Motions to Dismiss and/or for Summary Judgment: Upon consideration of the parties’ respective arguments, the Administrative Law Judge confirms the ruling denying ANP’s Motions to Dismiss and/or for Summary Judgment. However, because the parties in this matter previously litigated a Citation and Complaint in Docket No. 07F-0562- ROC, which Decision has become final, the issues litigated in that case cannot be re-litigated in this matter under the doctrines of res judicata and collateral estoppel. As such, the Administrative Law Judge issues within this Pre-hearing Order, an Order Limiting the Scope of the consolidated hearing as follows: IT IS ORDERED as to docket no. 07F-M1424-ROC, that Complaint items (a) and (d) are barred by the doctrines of res judicata and/or collateral estoppel because they were litigated in Docket No. 07F-0562- Registrar of Contractors.[1] Regarding Complaint item (c) and the amendment items, Buildmar cannot represent the interests of the homeowner, pursuant to Rule 31 of the Rules of the Arizona Supreme Court. Amendment items pertaining to the kitchen ceiling lights and the master bedroom lighting pertain to the interests/wants/desires of the homeowner. The scope of the hearing in regard to this Complaint shall be limited to Complaint item (b) and the remainder of the amendment items. IT IS FURTHER ORDERED as to docket no. 07F-1529-ROC, that Complaint items (a), (b), (g), (h), (i), (j), and (l)[2] are barred by the doctrines of res judicata and/or collateral estoppel because they were litigated in Docket No. 07F-0562-ROC.[3] The scope of the hearing in regard to this Complaint shall be limited to Complaint items (c), (d), (e), and (f).

16. At hearing, Inspector Cook testified that because a scope of work was not specified and because the parties’ contract was for labor only, he could not determine whether ANP was responsible for any incomplete, defective, or pre-existing conditions. Inspector Cook further testified that he could not determine whether any of the work “should have been different than it was”. Inspector Cook testified that he has “no idea” when the arcing in the panel occurred, whether it was the day before the inspection or twenty years ago. Inspector Cook testified that he does not know who performed what electrical work, whether any of the work was recently performed, and that he assumes that the original electrical work present in the home had met code requirements. 17. Inspector Duncan was not present at the hearing. As such, he did not testify regarding his findings at the jobsite inspections or the directives contained in the CWOs. Mr. Romero did not request a continuance of the hearing due to Inspector Duncan’s non-appearance. 18. Mr. Romero gave very limited testimony and failed to address the majority of the items that remained within the scope of the hearing. Mr. Romero testified that no electrical work was performed on the projects after ANP left the projects. However, on cross examination, Mr. Romero acknowledged sending the following correspondence to ANP: a. A fax dated March 21, 2006, acknowledging that “there appears to be a drug issue at this home” and also a theft issue. See Exhibit P. b. A fax dated July 7, 2006, to Mr. Pelletiere stating, “Electrical finals were rejected by Building Safety for cause not associated with your work.” See Exhibit Q. c. A letter dated July 18, 2006 to Mr. Pelletiere, stating “this morning the last remaining electrical installation will be complete in the form of smoke detectors and kitchen light fixtures at [the 62nd Drive project]. See Exhibit 6.

19. Mr. Pelletiere testified that when ANP concluded its work on both projects, all of its work was operational, with one exception. As to the Olive Street project, the lighting packages were not present on site to change out. Mr. Pelletiere testified that Mr. Romero advised him that Buildmar would complete the electrical trim, including the ceiling fans. Regarding the exterior lighting, Mr. Pelletiere testified that ANP did not perform this work. Mr. Pelletiere testified that with regard to the interior lighting circuit, it was not big enough for dedicated circuits, and no prints were provided by Buildmar. Mr. Pelletiere testified that this work met code requirements. Mr. Pelletiere further testified that any existing wiring that was not touched, is grandfathered into the old electrical code requirements, and that 10% to 15% of existing wiring may fall under this grandfather provision. Mr. Pelletiere testified that ANP did not perform the service panel change out on the Olive Street project, but that Buildmar’s previous electrical contractor had done so. Mr. Pelletiere testified that ANP did not wire the kitchen, did not perform work on the hall light, the bath light, the exterior light, or the smoke detectors. Regarding the stove, ANP provided a home run and trimmed it with a three prong device, rather than a four prong device, and that either device meets code requirements. Regarding the light in the storage room, Mr. Pelletiere testified that such work was not ANP’s as there was no fixture present in the room when ANP left the project. 20. Regarding the 62nd Drive project, Mr. Pelletiere testified that the fixtures were installed with proper J boxes, however, the J boxes and fixtures were removed, and not by ANP. Mr. Pelletiere further testified that ANP did not install the fans. 21. The Administrative Law Judge finds based upon the credible evidence of record as follows: a. Buildmar appears to still be arguing over the “no-pay” matter that had previously been litigated and has become a final Order of the ROC; b. Electrical work had been performed by others prior to and subsequent to work performed by ANP on both projects; and c. Buildmar has failed to establish that ANP is responsible for any of the items of complaint. CONCLUSIONS OF LAW 1. In this proceeding, Buildmar bears the burden to prove, by a preponderance of the evidence, that ANP is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(3), and/or (A)(7) as charged by the ROC in its September 25, 2007 Citation and Complaint, and A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), (A)(9), and/or (A)(23) as charged by the ROC in its October 2, 2007 Citation and Complaint. See Arizona Administrative Code 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). 3. The Administrative Law Judge concludes that Buildmar has failed to meet its burden of proof as to all of the ROC’s charges. 4. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for the “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The instant record failed to demonstrate that ANP abandoned its contract with Buildmar, as the contract was based on hourly work and Buildmar advised ANP that Buildmar would complete the trim work. Accordingly, under all of the facts and circumstances presented herein, ANP did not violate A.R.S. § 32- 1154(A)(1). 5. 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 failed to established that ANP departed from plans and specifications. Therefore, the Administrative Law Judge concludes that ANP did not violate A.R.S. § 32-1154(A)(2). 6. 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 ANP 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 Buildmar failed to establish that ANP failed to perform its work on the two projects in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that ANP did not violate A.R.S. § 32-1154(A)(3). 7. Under A.R.S. § 32-1154(A)(9), a contractor is subject to discipline for “failure in a material respect . . . to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.” The parties’ contract was based upon hourly work and the issues of the hourly rate and fuel charges, etc. were previously adjudicated in Case No. 07F- 0562, and were specifically precluded from being addressed within the scope of this hearing. See Exhibit 11. Therefore, the Administrative Law Judge concludes that ANP did not violate A.R.S. § 32-1154(A)(9). 8. Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that jobsite inspections by the appointed inspectors for the ROC were held, pursuant to which the ROC issued ANP two CWOs directing it to accomplish specified remedial work within a stated period of time. Buildmar failed to address either of the CWOs at hearing. As such, the Administrative Law Judge concludes that ANP did not violate A.R.S. § 32-1154(A)(23). 9. 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, from the evidence presented, that Buildmar failed to establish that ANP committed a wrongful or fraudulent act that substantially injured Buildmar. Therefore, ANP did not violate A.R.S. § 32-1154(A)(7). 10. The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against ANP’s license. The ROC’s Citations in Case Numbers M07-1424 and 07-1529, and the Complaints upon which they are based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against ANP’s license, and that the Citations issued in Case Numbers M07-1424 and 07- 1529, together with the Complaints upon which they are based, be dismissed.

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, February 19, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] See Administrative Law Judge Decision in Docket No. 07F-0562-ROC, Findings of Fact Nos. 18, 19, 21, and 23. [2] There is no item k. [3] See Administrative Law Judge Decision in Docket No. 07F-0562-ROC, Findings of Fact Nos. 3, 4, 10, 11, 18, 19, and 23.

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