ALJDEC decisions subject to certification as final

09F-1228-ROC · Registrar of Contractors · 2009-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 14, 2009 APPEARANCES: Complainant Kerri Lynch appeared on her own behalf. Kirk Kruse appeared on behalf of Respondent Mustang Plumbing and Rooter Service, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Mustang Plumbing and Rooter Service, Inc. (“Mustang”) 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 Mustang is the holder of a Class C-37R license (No. 098469) issued by the Registrar of Contractors (“ROC”). Kirk Kruse is Mustang’s qualifying party and corporate officer. On April 2, 2007, Mustang was contacted by the Villa De Vallarta Homeowner’s Association regarding a leak in one of the condominium units. Complainant Kerri Lynch owns unit 129. However, Ms. Lynch is not the homeowner who contacted the homeowner’s association regarding the leak. Gabriel Herrera, Villa De Vallarta’s maintenance superintendent, credibly testified as to the events that transpired prior to his contacting Mustang. Mr. Herrera testified that the homeowner of unit 128 had believed his water heater was leaking and requested that it be replaced. Mr. Herrera had the water heater replaced. However, two to three days later, the same homeowner contacted him again, complaining that the water heater continued to leak. Mr. Herrera and the homeowner of unit 128 assessed the situation and realized that the leak was not emanating from the water heater, but rather from Ms. Lunch’s unit. Mr. Herrera attempted to contact Ms. Lynch, but was unsuccessful. Mr. Herrera contacted a locksmith to unlock Ms. Lynch’s storage unit on her patio. When the storage unit was unlocked and opened, Mr. Herrera determined that it was too full of Ms. Lynch’s personal belongings to determine from where the leak originated. Mr. Herrera had the locksmith re-lock the storage unit. The following day, Mr. Herrera asked Ms. Lynch to remove the contents in the storage unit. Ms. Lynch would not do so because she was occupied caring for her ailing mother. Thereafter, Mr. Herrera contacted Mustang. Mr. Herrera contacted Mustang on April 2, 2007. Mustang determined that a leak locator was required. On April 4, 2007, the leak locator conducted inspections of units 229, 228, and 129. However, Ms. Lynch was not at home, and therefore, the leak locator did not have access to her unit. Mr. Herrera credibly testified that after several days and after exhausting every other avenue, he approached Ms. Lynch and advised her that if she did not give access to her unit to investigate the source of the leak, and it was determined that her unit was indeed the source, that she would be responsible for the damages. Mr. Herrera volunteered to remove her belongings from the storage unit so that she did not have to take the time to do so. On April 5, 2007, the leak locator determined that the cause of the leak was due to Ms. Lynch’s soft water salt water tank overflowing. At that point, the independent shut off for the salt water tank was turned off. Ms. Lynch hired Sears to perform the repair to the salt water tank. Sears’ technician determined the cause of the overflow to be due to a part failure and replaced the brine tube. See Exhibit 4. Mustang charged Villa De Vallarta a total of $781.50, including $225.00 for the leak locator. See Exhibit 3. The Board of Directors for Villa De Vallarta paid Mustang’s invoice. However, the Board decided to back charge Ms. Lynch for reimbursement of those charges, as well as for the charges incurred for the locksmith. Mr. Herrera testified that the homeowner’s association is only responsible for plumbing lines contained inside walls and in common areas. Mr. Herrera testified that Ms. Lynch was not charged for drywall damage in her neighbor’s unit or for damage to her neighbor’s personal belongings. Mr. Herrera testified that had Ms. Lynch given access on the first day, she would not have been billed as the costs incurred would have been substantially less. On August 29, 2008, Ms. Lynch filed a complaint against Mustang with the ROC alleging that Mustang submitted fraudulent invoices. During the course of the hearing, Ms. Lynch alleged that Mustang “doctored” its invoice because someone changed the unit number from 128 to 129, and that the leak was not in her unit. See Exhibit 3. Both Mr. Herrera and Mr. Kruse acknowledged that Mustang’s plumber wrote the wrong unit number on the invoice in error, and therefore, he corrected his mistake. CONCLUSIONS OF LAW In this proceeding, Ms. Lynch bears the burden to prove, by a preponderance of the evidence, that Mustang is subject to discipline for violations of A.R.S. § 32-1154(A)(7) and/or (A)(13) as charged by the ROC in its March 2, 2009 Citation and Complaint. See Arizona Administrative Code 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 Ms. Lynch failed to meet her burden of proof as to both of the ROC’s charges. Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include its contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Ms. Lynch did not address this alleged violation. Therefore, the Administrative Law Judge cannot conclude that Mustang violated A.R.S. § 32-1154(A)(13). 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 credible evidence presented at hearing, that Ms. Lynch failed to establish that Mustang committed wrongful or fraudulent acts that substantially injured her. Therefore, the Administrative Law Judge concludes that Mustang did not violate A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Mustang’s license. The ROC’s Citation in Case Number 09-1228, and the Complaint upon which it is 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 Mustang’s license, and that the Citation issued in Case Number 09-1228, together with the Complaint upon which it is 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, July 21, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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