ALJDEC decisions subject to certification as final

09F-A0223-ROC · Registrar of Contractors · 2009-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 2009. APPEARANCES: Fred H. Tupkielewicz appeared personally. R.E.D. Plumbing, Inc. was represented by its president and qualifying party, Keith Riggs. 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. R.E.D. Plumbing, Inc. (“Respondent”) is the holder of License No. 188176, a Class K-77 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 5, 2008, Fred H. Tupkielewicz (“Complainant”) filed a written Complaint with the Registrar alleging that Respondent damaged his backflow preventer during a service call. The Registrar designated the Complaint as Case No. A09-0223. 3. The Registrar issued a Citation and Complaint in Case No. A09-0223 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (3), specifically A.A.C. R4-9-108, and (13), specifically A.R.S. § 32- 1124(B). 4. The Registrar forwarded Case No. A09-0223 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. On January 27, 2007, Respondent’s service technician, Steve Walker, performed a service call at Complainant’s residence located at 4566 N. Ranger Road, Prescott Valley, Arizona. Respondent was contacted to clear Complainant’s blocked main line. 6. Mr. Walker used a small snake to unblock the main line. Respondent’s larger snake was not available due to it being repaired. Upon completing the work, Complainant paid Mr. Walker $90.00 for the service call. 7. After Respondent completed its work, Complainant’s mail line became blocked again. On January 30, 2007, Respondent contacted Acme Plumbing, who came out and cleared the line. Complainant paid Acme Plumbing $150.00 for the service call. 8. On January 30, 2007, Respondent refunded Complainant’s $90.00 for the service call since Respondent was unable to totally clear the blockage in Complainant’s main line. 9. On November 28, 2008, Acme Plumbing performed another service call at Complainant’s residence. Acme Plumbing unplugged the main line stoppage and root treatment. Complainant paid Acme Plumbing $140.00 for the service call. 10. On December 30, 2008, Acme Plumbing performed another service call at Complainant’s residence. Acme Plumbing replaced Complainant’s backflow preventer. Complainant paid Acme Plumbing $425.00 for the service call. 11. Complainant contends that Respondent damaged the backflow preventer during the service call on January 27, 2007. However, Complainant failed to present any eyewitnesses or experts who could testify that Respondent damaged the backflow preventer. 12. Respondent’s president and qualifying party, Keith Riggs, credibly testified that Respondent’s use of the small snake to clean out Complainant’s main line required the use of the flap for access, not the backflow preventer. Mr. Riggs opined that Acme Plumbing would have pulled the backflow preventer to use the larger snake when it cleaned Complainant’s main line. 13. Although not specifically addressed by Complainant, Complainant did present evidence of invoices issued by Respondent that do not properly list Respondent’s contracting license number. 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. The above Findings of Fact support this conclusion. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B). The above Findings of Fact support this conclusion. RECOMMENDED ORDER Respondent’s License No. 188176 shall be suspended on the effective date of the Order entered in Case No. A09-0233 until the Registrar receives written proof, and the Registrar accepts such proof, that Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B). If the Registrar receives written proof, and accept such proof, that Respondent has become fully compliant with the requirements of A.R.S. § 32- 1124(B) on or before the effective date of the Order entered in Case No. A09-0233, then the above-provided license suspension shall not take place and Case No. A09-0233 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 40days from the date of that certification.

Done this day, October 28, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

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