ALJDEC decisions subject to certification as final

09F-T1122-ROC · Registrar of Contractors · 2010-04-28

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2010

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Repipe Department Manager Kelly Babb and Regional Manager Mel Kosev.

WITNESSES: Richard Allen, ROC Inspector (by telephone) George Wiese Kelly Babb

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent Delta Mechanical. Respondent denies all allegations. At the start of the hearing, Respondent talked to Complainant and agreed to perform further corrective as follows: (1) there is a visible problem with strapping of the pipe that Respondent will correct; and (2) Respondent will correct the drywall texture in two areas (study and dining room). Respondent agreed to make these corrections without further hearing. This left one issue for hearing: Who is responsible to pay for opening the drywall in other areas in the home to check the pipes? Respondent relies on the fact that the home passed inspection by the local building authority. Respondent is willing to bear the cost of drywall repair only if further problems are found after the drywall has been opened. Respondent’s position is that it is not responsible for repair of the drywall if no further problems are found. Complainant argues that the reliability of the building inspection is in doubt because deficiencies were found after the inspection was conducted; deficiencies that should have been caught before the work passed inspection but weren’t. Complainant wants Respondent to be responsible for drywall damage even if no further problems are found. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has failed to perform in a workmanlike manner and failed to comply with a Corrective Work Order. FINDINGS OF FACT 1. Respondent is the holder of a class C-37R specialty residential contracting license (No. 125239) issued by the Registrar of Contractors (“ROC”). The license is restricted to certain plumbing work, including water piping systems. 2. Respondent preformed a re-piping job at Complainant’s house. The job passed local building inspection, but Complainant had problems with the new plumbing. 3. After Complainant filed an ROC complaint, ROC Inspector Richard Allen inspected the jobsite and ordered Respondent to make a few corrections. One of the corrections was to address and correct a water hammering noise. That correction was made in a timely manner. 4. The Inspector could not visually inspect the pipes that were covered by drywall. One area had been opened and it was verified that strapping was deficient in that area. This caused Complainant to wonder if there were strapping deficiencies in other areas that were covered with drywall. 5. Inspector Allen testified that the usual procedure is for the homeowner to open up the areas that he selects and then if there is a deficiency found the contractor must correct the deficiency and repair the drywall. If there is no deficiency found, the homeowner is responsible for the drywall repair. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(2) requires that construction meet plans, specifications and building codes. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence submitted shows violations of (A.R.S.) § 32-1154 (A)(2) and (A)(3). Respondent’s work did not meet building code and failed to meet minimum workmanship standards with regard to strapping. Because this was the case, it is reasonable to suspect that there are other strapping problems in the house. Furthermore, it is not reasonable to believe that the local inspection, which failed to catch the strapping problem in the hallway, would have caught other problems. Significant doubt has been cast on the local inspection of the plumbing for this house. Therefore, Respondent cannot rely on that inspection. 4. Respondent bears the responsibility for building the plumbing according to code. The evidence casts significant doubt on whether Respondent did so. Therefore, Respondent is responsible for checking its work and repairing any damage that causes. 5. Respondent is found to have violated Arizona contracting statutes and is subject to disciplinary action. A review of current ROC records shows that Respondent’s license is active and in good standing. 6. The appropriate sanction in this matter is to allow Respondent to make the corrections it has agreed to make and to check the rest of the plumbing system for errors. Respondent should bear the cost of any necessary plumbing repairs and of the repairs to drywall, whether or not any problems are found behind that drywall. If Respondent does not do so in a timely manner, its license should be suspended. A civil penalty is not warranted. RECOMMENDED ORDER IT IS RECOMMENDED that Class C-37R license 125239, held by Delta Mechanical, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof of correction of the items described above and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case T09-1122 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 28th day of April 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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