ALJDEC decisions subject to certification as final

09F-4207-ROC · Registrar of Contractors · 2010-03-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 2010 at 8:00 a.m. APPEARANCES: Complainant Alexander G. Mendoza appeared through Jimmy Borunda, Esq.; Respondent A R S American Residential Services LLC appeared through Thomas C. Hall, Esq., The Cavanagh Law Firm. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On February 3, 1998, the Registrar of Contractors (“the Registrar”) issued License No. ROC131215, Class C-37R for residential plumbing restricted to Respondent A R S American Residential Services LLC dba Rescue Rooter, a limited liability company. On February 2, 2009, the Registrar received a complaint from Complainant Alexander G. Mendoza against Respondent’s license, which alleged that Respondent overcharged Complainant, that Respondent had left a sewer line uncapped, that Respondent had left dirt and construction debris on Complainant’s front porch, and that Respondent had caused extensive and unnecessary collateral damage to Complainant’s house when it had removed a plumbing snake that Complainant’s handyman had lost in the plumbing system when he attempted to unclog the kitchen sink. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar also assigned the complaint to Inspector Phil Coscia for investigation. Inspector Coscia performed a jobsite inspection and, on March 10, 2009, sent a letter to the parties, informing them that he had determined that the complaint should be closed for the following reasons: The ROC does not have the authority to resolve disputed money amounts, or in this case, how much the contractor billed for the work to remove the plumbing snake from the waste piping in the home. With respect to the estimate from Rescue Rooter being unreasonable or outrageous, the registrar does not regulate what a contractor charges for their work. Mr. Mendoza would like to hire another contractor to complete the work and have Rescue Rooter pay for the repairs. The inspector does not have authority to direct Rescue Rooter to pay to have another contractor, to complete the work.

Prior to the inspection, the waste piping had been capped to prevent the smell of sewer gas in the home. And the fitting used to connect cast iron pipe to ABS piping was found to be proper. It is not appropriate to have the contractor to remove the concrete and dirt debris piled on the front porch as it will be needed to fill the holes in the slab when the concrete is repaired.

If you disagree with this decision, you may request, in writing, a formal citation against the contractor’s license. . . .

Complainant subsequently retained an attorney, Jimmy Borunda, Esq. On March 19, 2009, Mr. Borunda sent a letter to Inspector Coscia, requesting that he reconsider his opinion on the fittings that Respondent had used to connect the cast iron pipe to the ABS piping, in relevant part as follows: My client told you that the fittings in the ground are improper. He believed that you agreed at the time and at the scene. He is willing to have the area re-dug up to prove this matter in his favor. Contrary to your letter, Mr. Mendoza has NOT refused to allow the contractor to inspect the work in question. He is willing to let the contractor re-inspect and ESPECIALLY invites YOUR office to do so further.

We believe you were “conned” by the Respondent contractor, to be frank. What apparently occurred was that Johnny Onorato, Rescue Rooter’s general manager, who was present at the inspection, got his associate worker to go to their truck and retrieve PROPER fittings and show THEM to you. We agree THOSE fittings may be proper—BUT those were NOT the ones installed by the Respondent during the project in question. You did NOT set into the hole and dig up the ground to inspect the ACTUAL fittings installed. We believe that the ACTUAL installed fittings ARE defective and are NOT the same as the samples presented to you at the scene.

Further on this point, we have two professional plumbers who DID inspect the installed fittings and say the wrong fittings were used. The proper fitting has a metal clamp around the fitting, but the fitting actually installed does NOT. We believe this is a MATERIAL BREACH by the plumber.

Another issue is that your letter does not deal with the enormous/abnormal destruction—a 4-foot hole in the ground—of the master bathroom floor and shower stall to solve a minor plumbing problem. Certainly, that is NOT workmanlike contracting in the State of Arizona. Although you note that the waste piping had finally been capped to prevent FURTHER escape of toxic sewer gas, you fail to note the UNDISPUTED FACT that Rescue Rooter LEFT IT OPEN and therefore absolutely dangerous in violation of Code; it had to be plugged by another professional plumber. The fact that it has NOW been fixed by a Third Party is HARDLY a defense to Rescue Rooter for their negligence which may have injured my clients’ health.

So PLEASE re-open and reconsider this matter per the premises of this letter.

[Emphases in original.] Inspector Coscia performed another jobsite inspection and, on April 14, 2009, again informed the parties that he had determined that the complaint should be closed for the following reasons: Mr. Mendoza feels the contractor used the incorrect fittings to connect the existing cast iron piping to the newer ABS plastic pipe and a second inspection was performed. The inspector found the “Fernco 1056-33” fittings, installed by the contractor, are the correct fittings. A copy of the manufacturer’s literature on the fitting is included with this letter.

If you disagree with this decision, you may request, in writing, a formal citation against the contractor’s license. . . .

Inspector Coscia attached a printout from the website www.fernco.com that showed the fittings were intended for “Cast Iron or Plastic to Cast Iron or Plastic.” On April 19, 2009, Mr. Borunda sent another letter to Inspector Coscia on Complainant’s behalf, in relevant part as follows: [W]e must decline to accept your findings the same as we rejected your prior letter of March 10, 2009 wherein you also claimed that Rescue Rooter had done nothing in the plumbing job at my client Alex Mendoza’s home at 3951 W. Sheridan in Phoenix.

As your letter suggests, we demand that a formal citation be issued against the Contractor’s license. If you decline, as you have indicated, then we demand an administrative hearing before the Office of Administrative Hearings (OAH) as provided by statute in such cases.

The reason we still must dissent is that the City of Phoenix inspected the job April 15, 2009 and RED-TAGGED it—barring any future work UNTIL the problem is corrected. This is in DIRECT CONTRADICTION to your position on the fittings and shield. As per the attached red-tag notice, the City of Phoenix determined that a correct drain fitting MUST be used; required is a correct type of coupling AB to cast type with full shield (elbow). A 90- degree elbow is absolutely necessary. See a copy of the red-tag attached dated 4-15-09.

We have previously told you the other facts about how this whole job was mis-done from the beginning in an effort to turn a “molehill” (a two figure job) into a “mountain” (a 5-figure job). As per our prior conversations and letter the contractor has violated the Arizona Consumer Fraud Act (A.R.S. § 44-1522), and you should ask the attorney-General to enjoin and punish them under that law as he is permitted to do.

[Emphases in original.] Based on the red-tags that Mr. Borunda had provided, on May 7, 2009, Inspector Coscia issued a Corrective Work Order (“CWO”) to Respondent, directing it within 15 days to do the following: This amended order replaces the two previous opinions issued by the inspector on the March 10th and April 14th, 2009:

Mr. Mendoza has provided the inspector with new information showing that the local building official with the City of Phoenix has not approved of the installation of the drain sweep and waste pipe connection. In response: the contractor should make proper repairs using the acceptable materials in order for the work to be approved by the City of Phoenix building inspector.

On May 19, 2009, Mr. Borunda on Complainant’s behalf sent another letter to Inspector Coscia, in relevant part as follows: We do appreciate that . . . Rescue Rooter did go out to the Mendoza home again (the 3rd visit) to attempt to alleviate the problem. But as in baseball, three strikes and you are out! The problem was not fully resolved, and indeed a SECOND red-tag was issued by the City of Phoenix Inspector. The notice, a copy of which is attached, required the Contractor to provide a “test on all new system.”

In light of the REPEATED violations previously discussed, we now DEMAND that you EITHER (a) issue a citation to pull the license of this crooked/incompetent Contractor; or (b) hold an Administrative Hearing with the OAH for the same purpose. We previously made similar demands in our prior letters.

Although Rescue Rooter purportedly installed the replacement full shield previously discussed, they were supposed to give it a water test under proper protocol and requirements of the City of Phoenix. Although they were required to give it a water test, it appears the workmen did NOT know what had to be done for full compliance. Whenever Mr. Mendoza asked a question, they brushed him off, saying they are “professionals and know what they are doing.” The problem is that they are NOT competent professionals, STILL don’t know how to do the job properly, and thus the City of Phoenix red-tagged the project again!!!

Mr. Mendoza does not want THIS COMPANY to EVER come on his premises again. Rather, they should lose their license and be forced to pay the cost of a REAL plumbing contractor to finish fixing the mess they created as per the prior complaints in this matter. Indeed, Mr. Mendoza assumes they will try to further bill him for their own mistakes or the cost of trying to correct them—which is totally unacceptable.

[Emphases in original.] On May 29, 2009, Inspector Coscia referred the matter to the Registrar’s Legal Department for issuance of a Citation and Complaint. On August 6, 2009, Mr. Borunda on Complainant’s behalf sent a letter addressed to William A. Mundell, the Director of the agency of the Registrar, again demanding that the Registrar immediately issue a Citation and Complaint against Respondent’s license or forward the matter to OAH for hearing. Mr. Borunda noted that “almost 3 months have passed and nothing has happened.” Mr. Borunda reminded Director Mundell that “it is incumbent on you to do you duty or be mandated to by a Court, with my attorney fees assessed against your agency for us as provided by A.R.S. § 12-348.” On August 18, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(2), (7), (9), (23), and (3) (namely A.A.C. R4-9-108). Respondent’s attorney Thomas Hall, Esq. on its behalf timely answered the complaint, denying any statutory violations and affirmatively alleging that it had complied with the CWO and that Complainant’s prosecution of his complaint to the Registrar was improperly motivated by a desire to gain advantage in the civil suit that he had filed against Respondent. Mr. Borunda filed a reply to Respondent’s written answer to the Citation and Complaint, denying that Complainant was pursuing its complaint to the Registrar against Respondent’s license to intimidate Respondent or to win the civil suit. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A hearing was held on March 10, 2010. Inspector Coscia testified. Complainant Mr. Mendoza testified and presented the testimony of three other witnesses: (1) His wife, Estella Mendoza; (2) Robert Freund, the owner of Ben Franklin Plumbing[1]; and (3) Greg Boujikian, an inspector for the City of Phoenix. Complainant also submitted fifteen exhibits, including one exhibit that consisted of 18 photographs and one exhibit that was not admitted. Respondent presented the testimony of three witnesses: (1) Pablo Valenzuela, Respondent’s Project Coordinator for the job at Complainant’s house; (2) Soro Babet Coria, one of the technicians who worked on the job at Complainant’s house; and (3) John Onorato, Respondent’s qualifying party and Operations Manager. Respondent also submitted four exhibits. Additional Evidence Respondent’s Removal of the Snake Complainant is 80 years old. His wife Mrs. Mendoza is 78 years old. On January 6, 2009, Complainant contacted handyman Breezy Air to unclog the kitchen sink at Complainant’s house. On January 7, 2009, Breezy Air attempted to unclog the kitchen sink. During the attempt, the snake became stuck in Complainant’s wastewater pipes. Breezy Air recommended that Complainant call Respondent. On January 8, 2009, Respondent’s technicians Mr. Coria, Roy Snowden and/or Danny (last name unknown) arrived at Complainant’s house at about 10:00 a.m. The technicians disassembled the kitchen sink and attempted to back the snake out of the kitchen drain, where one end of the snake was dangling out of the drain opening in the wall under the kitchen sink. When they could not back the snake out of the kitchen drain using vice grips, the technicians contacted Respondent’s Project Manager Mr. Valenzuela. Mr. Valenzuela arrived on site to attempt to locate and remove the snake. He had a technician go onto Complainant’s roof to lower a camera into a 3” or 4” vent. While the technician lowered the camera, Mr. Valenzuela watched the monitor with Complainant and explained the images sent from the camera. The camera image showed where the snake had crossed over, which was in the line between the hallway bathroom and the master bathroom, where the toilets had been installed back-to-back. Mr. Valenzuela used the wand to determine that the snake was in the line between the two bathrooms approximately 2’ underground. Mr. Valenzuela explained to Complainant and Mrs. Mendoza that the toilet would have to be removed and the concrete slab jackhammered out to locate and remove the snake in the line beneath the slab. Mr. Valenzuela subsequently prepared Invoice No. 8051-253693, which was dated January 8, 2009 and provided an amount of $4,664.70 ($4,380.00 + tax of $284.70) for the following work: Cable broken in pipe. Need to remove broken cable from damage pipe.

Mrs. Mendoza signed to authorize the work. The hallway bathroom had a tile floor. The master bathroom had linoleum on the floor. To reduce the cost of repair, Mr. Valenzuela recommended that the slab be jackhammered out in the master bathroom to locate the snake. Mr. Valenzuela then left Complainant’s house to attend to other jobs that Respondent was doing at other properties. Mr. Coria and Respondent’s other technician at the jobsite removed the toilet in the master bathroom and jackhammered out an approximately 4’ to 6’ hole in the master bathroom floor to locate the pipe where the snake had been located. The pipes under Complainants house were cast iron and at least 30 years old. The pipes were as old as the house. Mr. Coria testified that he did not need to cut the line to locate where the snake was coming out of the vent because the pipe was broken. Mr. Coria also noticed that the cast iron pipes were corroded and that the pipe under the shower in the master bathroom had been leaking for some time. Mr. Coria tried to pull the snake out of the broken pipe using pry bars and his hands, but the snake “had too much tension” and would not budge. He testified that he cut the snake and was able to pull the snake from the kitchen, which was less than 10’ long. Mr. Coria threw the snake on the floor and tried to pull the remaining snake. The snake would not come out. Mr. Coria heard “thumps” from the wall when he pulled on the snake. Mr. Coria asked the other plumber to go to where the thumping was coming from to locate the end of the snake in the wall. After the other technician confirmed the location of the end of the snake, Mr. Coria told Complainant that the drywall in the master bedroom would have to be cut to remove the snake. Complainant said that he understood. Mr. Coria then cut an area of drywall from the master bedroom that was approximately 4’ x 6’ to expose the end of the snake. Mr. Coria testified that he did not have to cut the line to remove the snake because there was a 90° joint fitting where the snake came out of a broken vent. Mr. Coria testified that he could not say whether the snake had broken the vent; Complainant said the roof had been recently been replaced and roofers may have stepped on the vent on the roof during the replacement. Mr. Coria pulled the snake out of the wall in the master bedroom. Respondent’s witnesses’ testimony was credible. Mr. Valenzuela, Mr. Coria, and he other technician(s) followed the same steps and procedures that Complainant’s expert Mr. Freund testified should be followed in locating and removing the snake. Complainant testified that a technician immediately took the snake to Respondent’s truck. Complainant testified that he did not see anyone take part of the snake out of the master bathroom. Complainant testified that he believes that the technician removed the evidence that would have shown that Respondent’s jackhammering of the floor was unnecessary and only done to inflate Respondent’s bill and take advantage of a senior citizen. Mr. Valenzuela returned to the jobsite and added to Invoice No. 8051- 253693 the following description of the work performed: Cost to remove toilet in master [bathroom]. Jackhammer floor (concrete). Excavate down to sewer drain pipe. Remove section of cast iron pipe to get to broken cable inside. Open wall in master. Remove 1½ vent pipe due to break. Remove end of broken cable.

Mrs. Mendoza signed the invoice to verify that the work was done and gave Respondent a personal check in the amount of $4,664.70. Mrs. Mendoza testified that she did not know that, when she signed the invoice twice, she had authorized Respondent to perform the work and had approved the work. She did not know that the invoice was a contract. Mr. Coria and the other technician had to put the pipes back together where the snake had been removed. Mr. Valenzuela returned to the jobsite and viewed the work that had been done to remove the snake. Mr. Valenzuela asked Complainant and Mrs. Mendoza whether they would consider replacing the leaking corroded drain pipes that had been exposed by Respondent’s efforts to remove the snake before Respondent filled in the holes. Complainant indicated that he would consider such repairs. The Additional Work to Replace the Corroded Cast Iron Pipes Respondent’s technicians returned to complete their work on January 9, 2009, a Friday, at 9:00 a.m. On January 9, 2010, Mr. Valenzuela submitted a proposal for Respondent to replace the corroded cast iron pipes, in relevant part as follows: Need to replace additional sewer lines under shower and tub for kitchen also. We will need to cut out tile floor in shower and jackhammer concrete. We will need to remove cabinet and sink and cut drywall to replace lavy [sic] sink lines for drain and vent. This portion of work will take additional two days. When work is complete we will replace concrete, but not tile or wall repairs. All parts, equipment, and labor will be included in the estimate.

Total investment $9,293.00 not including work done.

Total combined project with invoice # [8051-253693] Total $13,957.70.

Complainant signed the invoice across from the line “acceptance of proposal.” Complainant testified that he did not know that the proposal was a contract. He did not mean to accept; all that he wanted was to have the snake removed. Respondent’s technicians started replacing the corroded cast iron pipes with plastic PVC pipe. They worked until 6:30 p.m. on Friday January 9, 2009. Complainant informed Respondent’s technicians that he had plans on Saturday, January 10, 2009 and that he therefore preferred that they return to finish the job on Monday, January 12, 2009. After Respondent’s technicians left, Complainant and Mrs. Mendoza discussed the project and decided that “things did not look right” and that Respondent was taking advantage of them. Mr. Coria and Mr. Valenzuela testified that, when they left the jobsite, they used rags to cap the lines, which is acceptable in the plumbing industry. They did not smell sewer gas. On January 10, 2009, Mr. Mendoza put a stop payment on the check for $4,664.70 that he had given Respondent on January 8, 2009 for removing the snake. On January 10, 2009, Mr. Mendoza also left a voicemail for Mr. Valenzuela that he and his wife and plans on Monday and that Respondent should not return to finish the job until Tuesday. Mr. Coria did not get the message. He returned to Complainant’s house on Monday January 12, 2009 to continue replacing the corroded cast iron pipes. Complainant told him to come back later. On Tuesday January 13, 2009, Complainant “came clean” to Mr. Valenzuela. Complainant told Mr. Valenzuela that he did not want Respondent back on the job. Complainant said that he had wanted the kitchen sink unclogged. Complainant testified that, at some point, he hired another plumber to cap the sewer pipes. Complainant did not identify the plumber or submit any invoice for this work. Respondent did not return to the jobsite after Friday, January 9, 2009, except to attend jobsite inspections and to comply with part of the CWO. Complainant still has not paid anything to Respondent for its work. The City of Phoenix Permit and Alleged Code Violations Mr. Valenzuela has been certified as a journeyman plumber for six years. Respondent’s qualifying party and operations manager Mr. Onorato has been certified as a journeyman plumber since 1998. Complainant’s expert Mr. Freund testified that he is a journeyman plumber. However, Mr. Freund was not asked about when a permit must be obtained for a plumbing project or to render any opinion on the fittings that Respondent used to connect the replacement PVC pipe to the cast iron pipe at Complainant’s house. The City of Phoenix Inspector Mr. Boujikian has a combination certification for inspections. Although there is a special plumbing certification, Mr. Boujikian does not have such certification. Inspector Coscia testified that a permit is not required for emergency repairs, such as Respondent’s removal of the snake from the drain lines at Complainant’s house. Inspector Coscia testified that, once a decision was made to replace the cast iron pipe, a permit would have been necessary to obtain a third-party inspection of the completed work. It would not be possible to obtain a permit, however, until the scope of work was known. Mr. Valenzuela testified that, if Respondent had completed replacing the cast iron pipe at Complainant’s house, it would have applied for a permit and obtained a third party inspection. Because Respondent had been terminated from the job to replace the leaking cast iron pipes after it had just started the job, it had not applied for a permit. Mr. Boujikian testified that the kind of extensive repairs to the cast iron pipe that he saw at the jobsite would have required a permit. However, when he saw the job, it was incomplete. On April 14, 2009, after Complainant filed his complaint to the Registrar against Respondent’s license and after Inspector Coscia had twice determined to close the complaint, Complainant applied to the City of Phoenix for a building permit for the following work: Minor plumbing repair at main line only. Lavatory replacement & shower floor drain installation. To upsize existing vent to roof to 2.5” to service a common full bath @ hallway. All works are subject to field inspection.

Pursuant to Complainant’s application, on April 15, 2009, City of Phoenix Inspector Jimmy Cruz inspected Respondent’s work and issued a red tag for the following workmanship deficiencies: 1) Use correct fitting – Drain fitting only 2) Use correct type of coupling AB to Case type – full shield

Pursuant to the May 7, 2009 CWO, Respondent replaced the “sweep” on the drain fitting, which was Item No. 1 on the red-tag. Respondent did not replace the coupling. On May 14, 2009, at Complainant’s request, Mr. Cruz issued a second red tag to “[p]rovide test on all new system.” On September 9, 2009, at Complainant’s request, Mr. Boujikian inspected the jobsite and issued a third red tag for the following previously identified deficiencies: 1) Provide test for new pipe 2) Provide neoprin [sic] coupling for verification of use under slab w/ cast iron

Complainant did not provide any of the red-tags to Respondent. As noted above, Inspector Coscia had researched the flexible coupling manufactured by Fernco Inc. that Respondent had used to connect the PVC pipe to the old cast iron pipe at Complainant’s house. According to the manufacturer, the coupling was approved to connect underground PVC pipe to existing cast iron pipe. The Fernco coupling that Respondent installed at the job had a neophrene sleeve with stainless steel clamps. The coupling that Mr. Boujikian felt that Respondent should have used, and the reason for the red-tag, had a full metal shield around it. Inspector Coscia testified that the Registrar defers to City inspectors’ opinions on municipal code requirements. After the City of Phoenix red- tagged the job, he issued a CWO. Mr. Boujikian admitted at hearing that neither the International Residential Code (“IRC”) nor the City of Phoenix code specifically requires a full metal shield on couplings used to connect PVC pipe to existing cast iron pipe underground. He did not know of any code that included such a requirement. Mr. Boujikian also admitted that, in the past, he has passed use of the Fernco coupling that Respondent used to connect PVC pipe to existing cast iron pipe underground in inspections performed for the City of Phoenix. Mr. Onorato testified that he has used the Fernco coupling to connect PVC pipe to cast iron pipe underground for 22 years. It has always passed inspection. In fact, for underground pipes like the ones at Complainant’s house, the neophrene sleeve is superior because it will not corrode or deteriorate underground. Mr. Onorato testified that he wanted to challenge the City of Phoenix’ red-tag of the Fernco coupling. Because Complainant had terminated Respondent, he did not have a chance to bring the challenge. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[6] Complainant terminated Respondent’s performance of the job after accepting its proposal to replace the leaking cast iron pipes at Complainant’s house. Respondent had charged Complainant the amount set forth on its invoice, which Mrs. Mendoza had signed, to locate and remove the snake. As of the date of the hearing, Complainant had not paid Respondent anything for removing the snake or for the work it started on replacing the leaking cast iron pipes. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(9)[7] in either of the jobs undertaken at Complainant’s house. Because Respondent had not completed replacement of the corroded cast iron pipes and because Complainant had terminated it from the project, Respondent could not provide any test on the new system. That responsibility lay with the permit applicant, Complainant. All of the experts agreed that a permit was not required at the stage that Complainant terminated Respondent’s performance of the contract to repair and replace the leaking cast iron pipes. With respect to Respondent’s use of the Fernco coupling, Complainant has not established that any code required Respondent to use a different coupling. Mr. Boujikian and Mr. Onorato agreed that the Fernco coupling that Respondent used routinely passed the City of Phoenix’ inspections.[8]

Mr. Coria’s and Mr. Valenzuela’s testimony about where Respondent located the snake and from which pipes Respondent removed the snake was more credible than Complainant’s testimony about what he thinks he saw and the improper motivation he attributed to Respondent’s employees. It appears that the first time Complainant mentioned Respondent’s employee’s allegedly fraudulent act was at the hearing. Moreover, Complainant’s failure to terminate Respondent until more than four days after the allegedly fraudulent act occurred bolsters this conclusion. Therefore, on this record, Complainant has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[9] (7),[10] (23),[11] or (3)[12] in its failure to obtain a permit to replace the corroded cast iron pipes or use of the Fernco coupling to attach the PVC pipes to the cast iron pipes at Complainant’s residence. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar dismiss Complainant Alexander G. Mendoza’s complaint in Case No. 09-4207 against Respondent A R S American Residential Services LLC dba Rescue Rooter’s License No. ROC131215, Class C-37R. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, March 18, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Freund did not provide his license number at the hearing and the administrative law judge has been unable to locate a license for Mr. Freund or for Ben Franklin Plumbing at the Registrar’s website. [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.” [8] It appears that Complainant and his attorney Mr. Borunda brought considerable pressure on Inspector Coscia and the City of Phoenix inspectors to find mistakes in Respondent’s work, under the guise of protecting senior citizens. [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [10] This statutory subsection formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure 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 a written directive from the registrar.” [12] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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