ALJDEC decisions subject to certification as final

09F-A0206-ROC · Registrar of Contractors · 2009-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 2009. APPEARANCES: Amanda Bick and Kenneth Charles Whitley appeared personally. 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. Kenneth Charles Whitley, doing business as Acme Plumbing (“Respondent”), is the holder of License No. 199658, a Class C-37R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 21, 2008, Amelia Bick (“Complainant”) filed a written Complaint with the Registrar alleging deficient workmanship resulting in extensive damage by Respondent during a re-piping project at Complainant’s residence located at 7685 Spanish Moss, Prescott Valley, Arizona. The Registrar designated the Complaint as Case No. A09-0206. 3. The Registrar issued a Citation and Complaint in Case No. A09-0206 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 4. The Registrar forwarded Case No. A09-0206 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. Complainant hired Respondent to re-pipe her manufactured home. Complainant paid Respondent a contract price of $2,600.00 for this scope of work. 6. Respondent and his employees performed the re-piping work on September 26, 2008. 7. Upon beginning the re-piping work, Respondent and his employees noticed several damaged areas of insulation underneath the manufactured house. Respondent candidly admitted that he failed to inform Complainant of the pre-existing damage found by his workers prior to commencing the re-piping. 8. When Respondent and his workers performed the re-piping work, approximately one-third of the ground underneath Complainant’s home was thick mud. 9. During the re-pipe work, Respondent’s workers cut small slices in the insulation to install the new pipe. Respondent does not normally repair such slices because they close themselves. 10. Complainant failed to present credible evidence that Respondent caused the other alleged extensive damage to the underside of her manufactured home. 11. Complainant had the damaged insulation repaired by Dependable Plumbing, L.L.C., who Complainant testified was her regular plumber that she had used for years.[1] 12. At the hearing, Complainant did not address Respondent’s failure to properly list his contracting license number, as charged in the Citation and Complaint. There is documentary evidence establishing that Respondent properly listed his contracting license on his invoices. However, other documentary evidence established that Respondent failed to properly list his contracting license on correspondence he wrote to the Registrar and Complainant. 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. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. 4. 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. RECOMMENDED ORDER Respondent’s License No. 199658 shall be suspended on the effective date of the Order entered in Case No. A09-0206 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent is fully compliant with the provisions of A.R.S. § 32-1124(B). If on or before the effective date of the Order entered in Case No. A09-0206 Respondent submits written proof to the Registrar that he is fully compliant with the provisions of A.R.S. § 32-1124(B) and the Registrar approves such proof of compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. A09-0206 shall be closed. 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 24, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] There is no evidence explaining why Complainant hired Respondent to perform the re-pipe work rather than her regular plumber, Dependable Plumbing, L.L.C.

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