ALJDEC decisions subject to certification as final

08F-2679-ROC · Registrar of Contractors · 2009-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2009 APPEARANCES: Complainant William Hammers appeared on his own behalf. Steve Herzog appeared on behalf of Respondent Diamondback Plumbing Services, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Diamondback Plumbing Services, Inc. (“Diamondback”) 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 Diamondback is the holder of a Class K-37 license (No. 140167) issued by the Registrar of Contractors (“ROC”). Steve Herzog is Diamondback’s qualifying party and corporate officer. In December 2007, Complainant William Hammers contacted Diamondback and requested that Diamondback repair a leaky faucet in Mr. Hammers’ master shower. On December 27, 2007, one of Diamondback’s technicians inspected the leaky shower and determined the cause of the leak to be the washers. Mr. Hammers instructed the technician to not only replace the washers in the shower, but to also replace the washers in the bathtub for maintenance purposes. The technician left Mr. Hammers’ home to procure the washers. The technician returned an hour and a half later, changed out the washers, and billed Mr. Hammers in the amount of $202.41. See Exhibit 1, page 8 and Exhibit A. Prior to leaving Mr. Hammers’ home, the technician tested the shower faucet in Mr. Hammers’ wife’s presence. Mr. Hammers testified that his wife commented to the technician that the faucet still appeared to be leaking. The technician responded by saying that it was “just water in the line”. The faucet continued to leak and the faucets on the tub turned in the same direction, rather than the opposite direction as they had prior to Diamondback’s technician’s performance of his work. On December 28, 2007, the day after the technician changed out the washers, Mr. Hammers called Diamondback explaining that he had to “schedule a redo.” Approximately one week later, the same Diamondback technician returned to repair the leak in the shower. The technician determined the cause of the leak to be the stems, and removed them from the shower and tub, took them with him to Diamondback’s parts supplier for ordering, and returned to re-install the old parts until the replacement parts were available. On January 17, 2008, the same technician returned to install the replacement stems in the shower and bathtub, notwithstanding that Mr. Hammers had not authorized the technician to replace the stems in the bathtub. Diamondback charged Mr. Hammers $305.81 for this service, including the two bathtub stems that were not in need of replacement. The technician failed to check his work, because after he left, the bathtub faucet leaked water onto the floor. 8. Thereafter, Mr. Hammers hired a handyman to repair Diamondback’s faulty work. The handyman discovered that Diamondback’s technician failed to install the gaskets on both bathtub faucets. Mr. Hammers testified that he did not call Diamondback to perform any further repair work because the technician had proved to be incompetent as he caused additional problems for which Mr. Hammers was charged to repair. 9. On February 25, 2008, Mr. Hammers filed a complaint against Diamondback with the ROC alleging the above delineated facts. 10. ROC Inspector Mark Alyea investigated Mr. Hammers’ complaint. 11. On March 28, 2008, Inspector Alyea conducted a jobsite inspection. Present for the inspection were Mr. and Mrs. Hammers, Mr. Herzog, and Mike Capoliano, Diamondback’s technician who performed all of the work at Mr. Hammers’ home. 12. On April 4, 2008, following the jobsite inspection, Inspector Alyea issued a letter to the parties advising of the following: After completing the jobsite inspection, we have determined that your complaint should be closed for the following reason(s):

Leaky faucets corrected prior to jobsite inspection. Complainant hired contractor to correct leaky faucets, he paid contractor accordingly.

13. Inspector Alyea testified that he performed a pre-hearing inspection on April 14, 2009, at which the Hammers and Mr. Herzog were present. Inspector Alyea testified consistently with the findings contained in the closure letter. 14. At hearing, Mr. Hammers contended that Diamondback excessively charged him for travel time. Mr. Hammers testified that he lives in North Scottsdale and that there are several plumbing suppliers and hardware stores that carried the parts that Diamondback’s technician needed, yet the technician spent an hour and half traveling to Brown’s Partsmaster in North Phoenix. Mr. Herzog testified that Diamondback only has accounts with certain suppliers and that its technicians are not permitted to pay cash for supplies. As such, all supplies are purchased on credit. 15. Mr. Herzog contended that Mr. Hammers was charged appropriately, and that there were no workmanship issues. Mr. Herzog testified that Diamondback was not given an opportunity to correct its work after the third visit, and that Diamondback would not have left a problem unresolved. 16. Diamondback’s technician was not present at the hearing, and therefore did not testify about the events that transpired. CONCLUSIONS OF LAW In this proceeding, Mr. Hammers bears the burden to prove, by a preponderance of the evidence, that Diamondback is subject to discipline for violations of A.R.S. § 32-1154(A)(3) and/or (A)(7) as charged by the ROC in its September 26, 2008 Citation and Complaint. 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 Mr. Hammers met his burden of proof as to both of the ROC’s charges. 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 Diamondback 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 Mr. Hammers established that Diamondback failed to perform its work at his home in a professional and workmanlike manner as evidenced by the shower faucet that continued to leak after the technician replaced the washers, the installation of the bathtub faucet in the wrong direction, and the failure to install the gaskets in the bathtub faucets after replacing the stems that were not authorized to be replaced. Therefore, the Administrative Law Judge concludes that Diamondback is in violation of 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 evidence presented at hearing, that Mr. Hammers established that Diamondback committed wrongful acts that substantially injured him as delineated in Conclusion of Law Number 4. Therefore, the Administrative Law Judge concludes that Diamondback is in violation of A.R.S. § 32-1154(A)(7). Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should place Diamondback’s Class K-37 license on probation for a period of 90 days and increase its bond. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Diamondback’s Class K-37 license (No. 140167) shall be placed on disciplinary probation for a period of ninety (90) days. It is further recommended, in addition to the above provided penalty, if any, that any continuation or restoration of Diamondback’s contracting rights, whether or not probationary, shall be subject to a condition that Diamondback first post an additional surety bond, cash deposit, or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32- 1131(3) and to be in addition to the required surety bond, cash deposit, or recovery fund participation set forth in A.R.S. § 32-1152(D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided twenty-four (24) month period and only if no claims are then pending. 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 4, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of May, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

-----------------------

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