ALJDEC decisions subject to certification as final

09F-5022-ROC · Registrar of Contractors · 2010-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 2010. APPEARANCES: Jamie Kent appeared personally. Standard Plumbing, L.L.C. was represented by its member and qualifying party, Rigoberto Lopez. 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. Standard Plumbing, L.L.C. (“Respondent”) is the holder of License No. 206482, a ClassC-37R contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent submitted a proposal dated February 16, 2009 to Jamie Kent (“Complainant”) for a project at Complainant’s residence located at 7887 N. 16 St., #214, Phoenix, Arizona. 3. Respondent’s proposal provided for the following work: MBATH: remove garden tub install a 2” P trap, install and waterproof walls & floor, greenboard wonderboard and install a scald guard single handle chrome shower faucet, one shower head bench

4,880.00 Drain pipe copper, faucet, labor, stainer included

Not included: tile/full set, grout, glass doors 4,880.00

Removal remove [sic] tile, tub, faucet, drywall to [sic] 2x4’s [sic], run 2” piping with a 2” P trap. All wood necessary wonderboard and tile labor 4,880.00

* Owner will provide: tile, grout, soap holder, glass doors. 6,580.00 + tax Labor Miscellaneous fittings. You provide: NB. Tile, sink, faucet for sink, glass door.

4. Respondent’s proposal listed its contracting licenses, but failed to contain the required prefix “ROC.” 5. On February 16, 2009, Complainant accepted Respondent’s proposal by signing the Acceptance of Proposal, which read: “The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment will be as outlined above.” The accepted proposal constituted the parties’ contract. 6. The parties agreed to a contract price of $8,250.00, with 50% down and 50% due upon completion. Complainant paid the 50% down payment. Respondent also received $500.00 from Complainant’s insurance carrier. 7. The parties’ written scope of work pertained only to Complainant’s master bathroom, not a hallway bath. 8. A dispute developed between the parties as to Respondent’s scope of work. The scope of work at Complainant’s residence developed into a total remodel of the master bathroom and a hallway bathroom. 9. Complainant contended that Respondent was responsible for providing glass doors for the showers. Respondent responded properly that its scope of work excluded glass doors, which were the responsibility of Complainant. 10. On March 23, 2009, Complainant filed a written Complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent on his project. The Registrar designated the Complaint as Case No. 09-5022. 11. The Registrar issued a Citation and Complaint in Case No. 09-5022 alleging violations by Respondent of A.R.S. § 32-1154(A) (1), (7), (17), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32- 1124(B). 12. The Registrar forwarded Case No. 09-5022 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 13. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view the Complaint items. Inspector Alyea observed that Complainant’s master bathroom and hallway bathroom had been completed by others. Therefore, he did not require any action by Respondent. 14. At the prehearing jobsite inspector, Inspector Alyea spoke to Don Fair, the subsequent plumber. Mr. Fair did not testify at the hearing. 15. At the hearing, Inspector Alyea testified that a tail pipe installed by Respondent did not meet minimum workmanship standards. However, there is no credible evidence of other deficient workmanship by Respondent. Mr. Fair submitted a written statement alleging deficiencies by Respondent, but he did not testify at the hearing, where he would have been subject to cross-examination by Respondent’s authorized representative. 16. Respondent was not entitled to the final payment of the contract price until the completion of its scope of work. 17. Both parties are found to have contributed to the breakdown in the project. Respondent’s scope of work accepted by Complainant expanded into a remodeling project for Complainant’s master bathroom and hallway bathroom. Complainant expected Respondent to perform work beyond the scope of work set forth in the parties’ contract. Complainant also denied Respondent access to his property when Respondent attempted to perform remedial work. 18. Respondent is found to have exceeded the scope of its C-37R plumbing contracting license by performing remodeling work, such as tile work, on the subject project. There is also credible evidence that Respondent is advertising on Craig’s List that it performs bathroom- remodeling work and that it failed to list its contracting license number in the advertisement. Complainant failed to credibly establish that Respondent’s conduct resulted in substantial injury to him.

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), Complainant has 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 did not violate the provisions of A.R.S § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as charged in the Citation and Complaint issued by the Registrar. There is credible evidence that Respondent exceeded the scope of its Class C- 37R plumbing license by performing remodeling work within the scope of a Class C-61 contracting license. There is credible evidence that Respondent is also advertising that it performs bathroom remodeling. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent’s failure to install the tail pipe in a workmanship manner supports this conclusion. 6. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 7. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. The Administrative Law Judge concludes that Complainant failed to sustain his burden of proving an entitlement to restitution in this matter, as requested in his Complaint. Therefore, the Administrative Law Judge shall not recommend restitution, as provided in A.R.S. § 32-1156.01.

RECOMMENDED ORDER

Respondent’s License No. 206482 shall be suspended on the effective date of the Order entered in Case No. 09-5022 until the Respondent presents proof to the Registrar that it is fully compliant with the provisions of A.R.S. § 32-1124(B), and the Registrar accepts such proof of compliance. If Respondent complies with the above-provided requirement on or before the effective date of the Order entered in Case No. 09-5022, then the above license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s Class C-37R contracting license shall be placed on active suspension for a period of five days, followed immediately by a period of days probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in Case No. 09-5022 or the date on which the Registrar approves Respondent’s compliance with the provisions of A.R.S. § 32-1124(B), whichever is later. 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 2, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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