ALJDEC decisions subject to certification as final

10F-Y0021-ROC · Registrar of Contractors · 2010-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2010 at 1:00 p.m. APPEARANCES: Complainant Pamela Livingston appeared on her own behalf; Respondent Benson’s Home Repair Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On June 14, 2008, the Registrar of Contractors (“the Registrar”) issued License No. ROC246588, Class C-37R for residential plumbing to Respondent Benson’s Home Repair Inc., a corporation. On August 13, 2009, the Registrar received a complaint against Respondent’s license from Complainant Pamela Livingston, which alleged that Respondent’s workmanship in installing a handicapped shower for Complainant’s elderly aunt at Complainant’s residence was deficient in certain enumerated respects. According to the complaint, Complainant had paid Respondent $1,100.00 of the contract amount of $2,700.00 and still owed $1,600.00 on the contract. The Registrar assigned the complaint to Inspector Daryl McCloskey for investigation. Inspector McCloskey conducted a jobsite inspection and, on August 26, 2009, issued a Corrective Work Order (“CWO”) to Respondent to correct the following items within fifteen days: THE WORK IS TO BE PERFORMED BY A PROPERLY LICENSED CONTRACTOR(S).

1) The seat in the shower does not meet A.D.A. height for the seat.

2) The shower seat extended over the threshold.

3) The tile corners are chipped on the shower seat.

4) The uneven tile on the shower walls.

5) The uneven grout line in the shower.

6) The cracks in the grout.

7) The shower valve not working correctly and handle upside down.

8) The inset tiles are not the correct tile order by owner.

9) The carpet outside the shower was not secured.

On August 27, 2009, Inspector McCloskey sent a letter to the City of Yuma Building Department, informing it what “[w]e have reason to believe that required building permit(s)” were not obtained for the job at Complainant’s house. On August 27, 2009, Inspector McCloskey sent a letter to Respondent, informing it as follows: We received a complaint alleging that you are operating beyond the scope of your Arizona Contractor’s License.

Our records indicate that you have a current class C-37R Plumbing license. However, the complaint alleges you are performing or offering to perform work that would be covered under the cope of a class C-61 Limited Remodeling and Repair Contractor license regarding the remodeling of a shower.

Arizona Revised Statutes, Section §32-1154 sets forth numerous grounds for suspension or revocation of a license. A.R.S. §32- 1154.17 reads:

“Knowingly contracting beyond the scope of the license or licenses of the licensee.”

Under these circumstances, the agency can seek disciplinary action against your license. You should review our most recent Statutes and Rules to familiarize yourself with the scope of your license(s).

On September 3, 2009, the City of Yuma Department of Community Development Building Safety Division (“the City”) sent a letter to Respondent, informing it that the work at Complainant’s house had required a building permit, but Respondent had not obtained a permit. The City gave Respondent days to submit plan and call for an inspection. Failure to submit a plan and call for an inspection would result in a report being forwarded to the Yuma City Prosecutor. On September 15, 2009, the Registrar received Complainant’s request for hearing, which stated that Respondent had not obtained a permit or complied with the CWO. On November 6, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, which charged A.R.S. § 32-1154(A)(2), (17), (23), and (3) (namely A.A.C. R4-9-108). Respondent timely filed a written answer to the Citation and Complaint, which denied any statutory violation and affirmatively alleged that Complainant had denied access to Respondent to allow it to comply with the CWO and that all deficiencies in the handicapped shower were caused by Complainant’s poor design. 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 March 18, 2010. Inspector McCloskey testified. Complainant testified. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not appear through a duly authorized officer, employee, or attorney and did not contact the Office of Administrative Hearings or the Registrar to request a continuance or that the time for the start of the hearing be further delayed. Respondent did not present any evidence to defend its license. Additional Hearing Evidence Complainant testified that Respondent contracted with her to build a custom handicapped shower while her aunt, who is 86 years old and was in a residential care institution. Complainant’s aunt’s doctor would not release her from the institution without a handicapped shower. Complainant testified that she told Respondent that she wanted large 12” x 12” tiles surrounded by a border of smaller, 4” x 4” tiles. Respondent had used pieces of the larger tiles on the border. Complainant testified that the shower that Respondent constructed requires her aunt to use a bucket to rinse her hair because the shower control does not properly regulate water temperature. Because the shower bench extends across the threshold, water splashes on the bathroom floor when the handicapped shower is used. Complainant testified that she has obtained estimates of the cost to repair the handicapped shower, although she did not submit any such estimates at hearing. Complainant testified that the cost ranged from $3,000 to $5,000. Inspector McCloskey testified that the shower bench was 14” tall. The ADA requires a handicapped shower seat to be 17” to 19” high. Inspector McCloskey testified Respondent performed the following work that was beyond the scope of its C-37R license when it converted the regular shower at Complainant’s house to a handicapped shower: (1) Moved an electrical outlet to another location; (2) Installed tile; and (3) Expanded the size of the shower, if framing was involved in the expansion. Inspector McCloskey also testified that he had contacted the City of Yuma about the project. Although a permit should have been obtained, as of the date of the hearing, no permit had been pulled or inspections performed by the City of Yuma. Inspector McCloskey testified that the City of Yuma had cited Moises Garcia dba Top Electric, an electrician who had worked on the project, in the City of Yuma Municipal Court for failing to apply for or obtain a permit for the job. According to the Registrar’s records, License No. ROC165527 was issued to Top Electric LLC on May 30, 2001. Moises Garcia is the qualifying party on that license. Moises Garcia is also listed on Respondent’s license as vice president. According to the Registrar’s record, Respondent’s license is current and in good standing. This is apparently the only complaint pending against the license. CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[1] The notice of the hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] Complainant has borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[7] (23),[8] and (3)[9] in the specific respects described in the CWO and by failing to obtain a permit for the job. By failing to appear at the duly noticed hearing, Respondent failed to establish that Complainant failed to allow reasonable access for repairs or any other affirmative defense. The Registrar has promulgated A.A.C. R4-9-104, which sets forth dual contracting license classifications and scopes of work. The scope of work for a K-37 license is “the work permitted by the commercial L-37 Plumbing and the residential C-37R Plumbing licenses.” The scope of work for an L- Plumbing license is in relevant part: Installation, alteration, and repair of all piping, fixtures, and appliances related to water supply, including pressure vessels and tanks . . . .

Also included are piping, fixtures, [and] appliances . . . .

The scope of work for a C-37R Plumbing license incorporates the above. “‘Knowingly’ imports only a knowledge that the facts exist which bring the act or omission within the provisions of the statute using such word. It does not require any knowledge of the unlawfulness of the act or omission.”[10] “’Notice of facts and circumstances which would put a man of ordinary prudence and intelligence on inquiry is . . . equivalent to knowledge of all the facts a reasonably diligent inquiry would disclose.’”[11] Respondent should have known that its C-37R license did not allow it to perform most of the work it undertook to convert the shower at Complainant’s house to a handicapped shower. Complainant therefore has established that Respondent violated A.R.S. § 32- 1154(A)(17)[12] when it performed most of the work it undertook to convert the shower at Complainant’s house to a handicapped shower. The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[13] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work.[14] The scope of Respondent’s C-37R license does not permit it to perform or to contract with others to perform any remedial work on the CWO, with the exception of correcting the installation and function of the shower valve, CWO #7.[15] Because Respondent cannot legally perform the corrective work to remedy the statutory violations that Complainant has established in this matter, restitution is appropriate. 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 should suspend License No. ROC246588, Class C-37R previously issued to Respondent Benson’s Home Improvement Inc. until the Registrar receives proof that Respondent has paid Complainant Pamela Livingston $3,000.00. It is further recommended that the Registrar should not suspend Respondent’s license and, instead, should close Case No. Y10-0021 if, on or before the effective date of the Registrar’s order, Respondent provides documentary proof that it has paid Complaint Pamela Livingston $3,000.00 by cashier’s or certified check. 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, March 23, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] 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). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [9] 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.” [10] A.R.S. § 1-215. [11] Maricopa Utilities Co. v. Cline, 60 Ariz. 209, 214, 134 P.2d 156 (1943) (quoting Schneider v. Henley, 61 Cal. App. 758, 215 P. 1036, 1038). [12] This statutory subsection includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [13] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [14] 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).

[15] See A.R.S. §§ 32-1151 (prohibition on contracting “without having a contractor’s license in good standing”); 32-1101(7) (defining “contractor” as one who submits a bid to or who performs “construction services.”

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