ALJDEC decisions subject to certification as final

10F-T0210-ROC · Registrar of Contractors · 2010-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 2010 at 8:00 a.m. APPEARANCES: Complainant Doraliz Vega appeared on her own behalf; Respondent Barbara Monica Dugan dba Dugan Mechanical Contractors appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On November 7, 2002, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC179232, Class K-77 for plumbing including solar to Respondent Barbara Monica Dugan dba Dugan Mechanical Contractors, a sole proprietorship. David Robert Dugan is Mrs. Dugan’s husband and Respondent’s employee and qualifying party. On October 15, 2009, the Registrar received a complaint against Respondent’s license from Complainant Doraliz Vega, which alleged that, on July 3, 2009, Respondent had contracted to investigate a leak at Complainant’s house for a contract price of $50. According to the complaint, Respondent had cut a hole in Complainant’s bedroom wall and, as a result, Complainant had had to pay $291.74 to repair the wall. The damage had been corrected by another contractor. The Registrar sent a copy of the complaint to Respondent for its immediate attention. On October 29, 2009, the Registrar received Complainant’s request for hearing to resolve “an impasse” between the parties. On December 16, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9- 108). On December 29, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any violation and affirmatively alleged that Respondent had only diagnosed the cause of a leak, not caused or repaired any problem at Complainant’s house. According to Respondent, “to request service from a leak inside the wall and then say we did not have permission to cut the wall is the ultimate hypocrisy.” The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on April 19, 2010. Complainant testified, presented the testimony of her mother and neighbor Amparo Bernal, and submitted ten exhibits. Respondent’s employee and qualifying party Mr. Dugan testified and submitted two exhibits. Hearing Evidence On June 29, 2009, The Warranty Group, which provided a “Home Protection Plan” on Complainant’s home, issued a Contractor Dispatch to Respondent, requiring it to respond to Complainant’s request for an “internal plumbing” area of service. According to the dispatch, “Mrs. H/O reports that there looks to be a leak in the bedroom wall the [sic] softening and starting bubble. Not known where from or cause.” Mr. Dugan called Complainant to make an appointment for Respondent to come out to diagnose the cause of and to repair the leak. He credibly testified at the hearing that she did not tell him about any possible cause of the leak or water damage to the bedroom wall. Complainant testified that, the first time she spoke to Mr. Dugan, she told him that she had had a block wall built and the crew had attached a hose to the bib on the exterior wall of the bedroom and that it had leaked. In light of the unambiguous statement on the Contractor Dispatch that the cause of the leak was not known, Complainant’s testimony was not credible. Mr. Dugan made an appointment for July 3, 2009 at 11:00 a.m. with Complainant. Respondent’s crew arrived 15 minutes early, at approximately 10:45 a.m. Complainant was not home at the time but called her mother Ms. Bernal, who lives across the street, to let Respondent’s crew into the house. Respondent’s crew went into the bedroom and viewed the wall. There was a suitcase full of clothes next to the wall. Ms. Bernal moved the suitcase to give Respondent access to the wall. Mr. Dugan told Ms. Bernal that Respondent would need to open the wall to diagnose the cause of the leak. Ms. Bernal got two trash bags for the debris. Respondent’s workmen also got plastic sheets from the truck. Respondent cut a 12” x 7” hole in the drywall in the bedroom to expose the pipes in the wall. There was no evidence that the pipes had been leaking. At that point, Ms. Bernal told Mr. Dugan that Complainant had installed a block wall in the yard, that the crew that had built the block wall had used a hose attached to the bib on the exterior wall outside the bedroom, and that the hose bib had leaked. Respondent verified that the cause of the water damage on the interior bedroom wall was the leaking bib, which sprayed water back toward the house. At this point, Complainant arrived. She became very upset when she called The Warranty Company and was told that her warranty only covered repairs caused by interior problems, not those caused by exterior problems.

Because Complainant did not indicate that she would allow Respondent to fix the bib or the hole in the wall, Mr. Dugan and his crew left. Respondent did not hear from Complainant again until she filed her complaint to the Registrar. Complainant told The Warranty Group that she did not want Respondent back at her home. On July 17, 2009, Complainant paid $194.00 to Progressive Plumbing Systems of Arizona, License No. ROC0074698 to repair the bib. The invoice that Complainant submitted described the work as “replace hose bib and related piping (causing damage to interior wall).” Mr. Dugan credibly testified that the interior wall would have had to have been opened up to expose the pipes and to repair the exterior hose bib. In late July or early August 2009, Complainant paid TM Building Damage Restoration $727.54 to repair the drywall and repaint with two coats 182 square feet of the interior bedroom wall. Complainant testified that she had to have the hole repaired immediately because it went through the interior and exterior walls, it was summer, and she needed to keep air-conditioned air inside. The photograph of the hole that Complainant submitted showed black inside the hole, which Mr. Dugan testified was mildew or mold and Complainant testified was black plastic. In any event, because the exterior of the house cannot be seen through the hole in the photograph, Complainant’s testimony in this respect was not credible. On or about August 22, 2008, The Warranty Group reimbursed Complainant $435.80 for the cost of the rough patch to the drywall. Complainant argued that Respondent had committed a contracting law violation by not securing her approval before it cut into the bedroom wall. Complainant testified that all that was needed was a light sanding to repair the damage to the wall before Respondent cut the hole in the drywall. Complainant asked that the Registrar order Respondent to pay her the difference between what she paid TM Building Damage Restoration and what The Warranty Group paid her, or $291.74, or have its license suspended. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to inspect and correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license.[6] The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[7] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation can no longer be remedied by corrective work.[8] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[9] That is not the case here. The wall was correctible and in fact has been corrected. Moreover, Complainant has not established that any health or safety issue required the wall to be repaired immediately. More importantly, Respondent has established that it was necessary to cut a hole in the drywall to diagnose the leak that had caused water damage to the interior bedroom wall of Complainant’s house. Any reasonable and competent contractor would have had to cut a hole in the wall to diagnose or to repair the cause of the leak. By requesting diagnosis and repair of the leak in the wall, Complainant implicitly approved Respondent’s work. Therefore, Complainant has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(3)[10] in this matter. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant Doraliz Vega’s complaint in Case No. T10-0210 against Respondent Barbara Monica Dugan dba Dugan Mechanical Contractors’ License No. ROC179232, Class K-77. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, April 27, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.R.S. §§ 32-1155(C)(1) and 32-1154(A)(23). [7] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [8] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [9] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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