ALJDEC decisions subject to certification as final

2008A-12123093-ROC · Registrar of Contractors · 2010-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: June 14, 2010 at 8:00 a.m. APPEARANCES: Complainants Robert J. Miller and Jeannette L. DeBuhr did not appear; Respondent Chiricahua Plumbing Co. LLC appeared through John D. Herbert, Esq., Herbert & Associates PA. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On September 23, 1999, the Arizona Registrar of Contractors (“the Registrar”) issued License No. K-37.148703-D for dual plumbing to Respondent Chiricahua Plumbing Co. LLC, a limited liability company. On April 7, 2008, the Registrar received a complaint from Complainants Robert J. Miller and Jeannette L. DeBuhr against Respondent’s license, which alleged that Respondent had been the plumbing subcontractor for the construction of Complainants’ home at 1436 E. Saddlebrook Crt., Lot #45 in Casa Grande and that the sewer line had broken at the kitchen sink area between the sink and the island. Complainants provided their address on the complaint as the same as the jobsite address, 1436 E. Saddlebrook Crt., Casa Grande, AZ 85222. The Registrar assigned the complaint to Inspector Frank Grochocki for investigation. Inspector Grochocki performed a jobsite inspection and, on May 15, 2008, informed the parties that he had determined that the complaint should be closed for the following reason: Complaint of broken sewer line – Jobsite found American Leak Detection had done leak test, confirmed leak in main drain at kitchen. Contractor stated passed underground plumbing water test for inspection. Jobsite inspection could not determine cause or responsible party for leak. No action required.

Inspector Grochocki informed Complainants that, if they disagreed with the decision to close the complaint, they could request in writing a formal citation against Respondent’s license. On May 21, 2008, the Registrar received Complainants’ request for a citation against Respondent’s license. The address on the letterhead was the same address that Complainants had provided on their complaint to the Registrar. On December 2, 2008, 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). Respondent failed to file a timely written answer to the Citation and Complaint and, on January 26, 2009, the Registrar issued a Default Decision and Order. The Registrar’s Decision and Order found that, by failing to file a timely written answer to the Citation and Complaint, Respondent had admitted the charged violation. The final Decision and Order also required that Respondent’s license be suspended on the effective date of the Decision and Order until Respondent provided proof to the Registrar that it had appropriately rectified the issues involved and detailed in the Citation and Complaint. The effective date of the Registrar’s final Decision and Order was March 7, 2009. The Registrar’s final Decision and Order also advised Complainants in relevant part as follows: [A]ny unreasonable denial of access to the Respondent or the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complainant[s] may be denied access to the Contractors’ Residential Recovery Fund [“the Fund”], even if otherwise eligible.

On January 27, 2009, the Registrar received Complainants’ written correspondence to the Registrar, which stated that they desired to make a claim to the Fund against Respondent, as well as two other subcontractors who had worked on their house, since the general contractor Eastwood Construction was out of business. The address on the letterhead of the correspondence was the same one that Complainants had provided on the complaint. On February 19, 2009, the Registrar received Respondent’s Notice of Compliance and Request for Rehearing. On March 31, 2010, the Registrar issued an order denying Respondent’s Request for Rehearing and requiring that a compliance hearing be scheduled in the expedited course of docketing. The Registrar referred Complainant’s complaint to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair compliance hearing. On April 15, 2010, the Registrar issued a Notice of Compliance Hearing setting a hearing on June 14, 2010 at 8:00 a.m. in the Office of Administrative Hearings in Phoenix. The Registrar mailed the Notice of Compliance Hearing to Complainants at the address shown on the complaint. A compliance hearing was held on June 14, 2010 at 8:00 a.m. Respondent’s attorney and members Marc Poulsen and Shannon Poulsen appeared at the duly noticed compliance hearing. Although the beginning of the hearing was delayed thirty minutes to allow Complainants additional travel time, they did not contact the Office of Administrative Hearings to request that the hearing be continued or that the start of hearing be further delayed and did not appear personally or through an attorney. Complainants did not present any evidence to prosecute their complaint. Respondent presented the testimony of its managing member and qualifying party, Mr. Poulsen. Mr. Poulsen testified that Respondent had performed plumbing services at Complainants’ residence. The work had passed all inspections, including a drainage sewage inspection on January 12, 2006. Mr. Poulsen noted that Inspector Grochocki had not found Respondent to be responsible for the leak. In addition, the general contractor for Complainants’ house had filed a complaint against Respondent for the same leak. That complaint had been dismissed. Mr. Poulsen testified that Respondent had offered to replace the leaking sewer pipe at no additional cost to Complainants, if they would provide access to the jobsite and if they hired a concrete contractor to cut the slab to allow Respondent access to the pipe for repairs to be performed. Complainants had not responded to Respondent’s offer. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Compliance Hearing that the Registrar mailed to Complainants at the address that they provided on the complaint was reasonable and they are deemed to have received Notice of the Compliance Hearing.[2] 3. Respondent bears the burden of proof to establish that Complainants failed to provide reasonable access for corrective work by a preponderance of the evidence.[3] 4. “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] 5. Respondent has established that Complainants did not allow reasonable access for Respondent to replace the leaking sewer pipe. 6. The record in this matter therefore does not establish that Respondent violated A.R.S. § 32-1154(A)(3).[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, Complainants Robert J. Miller and Jeanette L. DeBuhr’s complaint in Case No. 2008-12123093 (formerly T08-1212) against Respondent Chiricahua Plumbing Co. LLC’s License No. K-37.148703-D should be dismissed. 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, June 14, 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. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] 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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