ALJDEC decisions subject to certification as final

09F-T0275-ROC · Registrar of Contractors · 2009-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2009; 8:00 a.m. APPEARANCES: Complainant Ms. Allison Torba represented herself. Respondent Desert Sky Home Repair, LLC was represented by Mr. Joe Mazzi, President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Ms. Allison Torba filed this Complaint against Respondent Desert Sky Home Repair, LLC seeking reimbursement from the Respondent for costs incurred for allegedly paying others to correct Respondent’s mistakes. 2. Complainant hired Respondent to perform plumbing remodeling work at her residential property in Tucson, Arizona in January, 2007. 3. Respondent prepared and signed a written proposal which Complainant deems a contract. The parties disagree on the nature of the document. Respondent’s President Mr. Joe Mazzi testified that his practice is not to have a contract until the customer makes a payment and a work order issues. However, according to Mr. Mazzi in this case he proceeded to perform the work based on Complainant telling him she was too busy to bring him a check, but would give him one later in the day. In any event a professional contractor/customer relationship was initiated and Mr. Mazzi began work on the residence. 4. Shortly after he began work on the project, Mr. Mazzi telephoned Ms. Torba and their respective testimonies prove that they have a sharp disagreement over the nature of what Mr. Mazzi was trying to convey to Ms. Torba in that conversation. Mr. Mazzi testified that he found a crack in a pipe and he was going to have to make some changes due to code requirements. Ms. Torba testified that Mr. Mazzi was basically trying to extort more money out of her after having agreed to perform the work for a set price. The parties became angry with each other and either Mr. Mazzi walked off the job or Ms. Torba fired him. 5. Ms. Torba’s witness testified that he was performing other work on the home when the telephoned conversation occurred, and all he could say is that Mr. Mazzi was informing Ms. Torba about a “problem” and it appeared that there was disagreement. 6. Ms. Torba says that before he left the job site, Mr. Mazzi incorrectly cut into a pipe in material deviation for the plans. Mr. Mazzi testified that he was performing per code and their agreement. The parties produced photographs as evidence, and Mr. Mazzi produced copies of pipe specifications and a section form the International Plumbing Code. The greater weight of evidence proved that Respondent’s position on following code requirements was the correct one. 7. Mr. Mazzi testified that the pipe he cut into was cracked and leaking. Ms. Torba denies this. 8. The estimate Ms. Torba received from another plumber for $532.05 appears from all the evidence to be exorbitant, considering the evidence produced by Respondent showing the price of the pipe and small amount of labor required to install the pipe. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.1, 7 and 9. 3. The Complainant has brought this Complaint and must carry the burden of proof. A.A.C. R2-19-119. 4. There is insufficient evidence to conclude that Respondent abandoned the job. The facts are that the parties could not agree on how to proceed and their working relationship deteriorated to the point they could no longer cooperate. There is insufficient evidence to conclude that Respondent abandoned the job or failed to complete the work for a price stated in the contract in violation of A.R.S. § 32-1154.A.1 or 9. 5. Respondent is not cited by the Registrar in this case with a violation of A.R.S. § 32-1154.A.2; that is, a deviation from the plans or specifications. 6. There is no evidence of any other wrongful or fraudulent act by the Respondent in violation of A.R.S. § 32-1154.A.7 in this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T09-0275, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, July 30, 2009.

______________________________________ Grant Winston 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com