ALJDEC decisions subject to certification as final

08F-2480-ROC-res · Registrar of Contractors · 2009-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2009 APPEARANCES: Neil and Machelle Ervin appeared telephonically and were represented by their attorney, Patrick Monahan, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Live Oak Electric, L.L.C. (“Respondent”) is the holder of License No. 207669, a Class K-11 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 15, 2008, Machelle and Neil Ervin (“Complainants”) filed a written Complaint with the Registrar alleging deficient electrical workmanship at their residence located at 17509 N. Thoroughbred, Surprise, Arizona. The Registrar designated the Complaint as Case No. 08-2480. 3. The Registrar issued a Citation and Complaint in Case No. 08-2480 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. 08-2480 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. Prior to the convening of the scheduled hearing before the Office of Administrative Hearings, Complainants filed a voluntary withdrawal of their Complaint. 6. On May 1, 2009, the Registrar issued an Order of Closing in Case No. 08-2480 based upon Complainant’s withdrawal. Respondent was given until May 11, 2009 to object to the closing of the Complaint. 7. On May 5, 2009, Respondent filed an objection to the closing of the Complaint with the Registrar. 8. On July 17, 2009, the Registrar issued an Order resetting this matter for formal hearing. 9. Respondent submitted a Job Bid dated November 8, 2005 to Complainants for the performance of electrical work for a new outdoor spa. The contract price was $1,304.62, including applicable taxes. 10. Respondent’s Job Bid did not have checked off the box indicating that Complainants would be responsible for obtaining a permit. 11. On November 8, 2005, Complainants paid Respondent a down payment in the amount of $652.31. 12. On November 21, 2005, Complainants paid Respondent the balance of the contract price in the amount of $652.31. 13. Respondent completed its scope of work prior to the installation of the spa, which was not within its scope of work. 14. Respondent advised Complainants of code requirements for the electrical outlet for the spa at the proposed location for the spa. Respondent performed all work requested by Complainant, without knowing the exact location for the spa installation. 15. After Respondent completed its scope of electrical work and Complainant’s had the spa installed, Respondent complained to Respondent that the GFI was shutting off during the rain. 16. The GFI has three settings: on, tripped, and off. 17. Upon inspection, Respondent discovered that the GFI was not tripped, but was in the off position. Someone had to have moved the switch to that position. If the GFI tripped for protection as designed, Respondent would have found it in the tripped position. 18. At the hearing, Complainants failed to present credible evidence that the GFI had tripped to protect the electrical system, rather than having been turned off. 19. Complainants opened the junction box and hosed it down. Respondent warned Complainants not to do so for safety reasons. After Complainants repeated did so, Respondent refused to further address junction box issues due to Complainants’ abuse. 20. Complainants retained another electrician to inspect Respondent’s work, but that electrician did not appear at the hearing subject to cross-examination by Respondent. 21. The subsequent electrical contractor was hired by Complainant to abandon Respondent’s work, and re-wire the property for the spa to be relocated to the other side of the house. There is no credible evidence that the relocation of the spa was due to Respondent’s workmanship. 22. The Registrar’s assigned inspector, Craig Williams, testified that he performed a jobsite inspection on April 1, 2008. Inspector Williams testified that all of Respondent’s work had been removed and replaced when the spa location was changed. He observed some of Complainant’s electrical work on the ground, and he opined that it appeared alright. 23. Complainants have sold the subject residence and now reside in the State of Washington. 24. Any allegation contained in Complainants’ Complaint not specifically addressed in the above Findings of Fact is found to lack sufficient evidence of record to support a Finding of a statutory or regulatory violation by Respondent. 25. While there is a dispute as to which party was responsible for obtaining the required building permit, Respondent was not permitted to perform its electrical scope of work without an existing permit for the job. 26. Respondent’s performance of its electrical work without a permit having been pulled is a wrongful act, but Complainants failed to present credible evidence that they were substantially injured by that act. 27. Complainants request for total restitution of the parties’ contract price is not justified by the evidence of record. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. The factual basis for this Conclusion of Law is Respondent’s performance of its electrical work on the subject project without a permit for the job, regardless of whose responsibility it was to obtain the permit. Complainants’ other allegations of code violations or deviations from specifications are not supported by the evidence of record. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The factual basis for this Conclusion of Law is Respondent’s performance of electrical work without there being a building permit for the project. 5. The evidence of record does not support a violation by Respondent of A.R.S. § 32-1154(A) (7), as charged in the Citation and Complaint issued by the Registrar. While Respondent’s performance of electrical work without a building permit for the project is a wrongful act, Complainants failed to sustain their burden of proving that such action by Respondent resulted in substantial injury to Complainants. A permit could have been obtained after the work was completed and the necessary inspections performed. There is also credible evidence that Complainants disregarded Respondent’s advice on code requirements. 6. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge may recommend restitution to Complainants in this matter. The Administrative Law Judge concludes that Complainants failed to sustain their burden of proving their entitlement to restitution in this matter. RECOMMMENDED ORDER Respondent’s License No. 207669 shall be placed on disciplinary probation for a period of 90 days, commencing on the effective date of the Order entered in Case No. 08-2480. 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, November 4, 2009

/s/ Brian Brendan Tully Administrative Law Judge

Electronically transmitted to:

William A. Mundell, Director Registrar of Contractors

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