ALJDEC decisions subject to certification as final

2008A-23601210-ROC · Registrar of Contractors · 2011-08-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: July 11, 2011 APPEARANCES: August H. Allen appeared personally. Scapes, Inc. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order on Rehearing: FINDINGS OF FACT 1. Scapes, Inc. (“Respondent”) is the holder of License No. 177981, a Class K-21 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 11, 2008, August H. Allen (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. Complainant had hired Respondent to perform landscaping work at his residence located in Peoria, Arizona. 3. Complainant’s Complaint states that the contract price of $22,769.75 had been paid in full by Complaint to Respondent. Respondent completed its original scope of work on March 19, 2005. Respondent last performed remedial work on the project on June 1, 2006. 4. The Registrar designated Complainant’s Complaint as Case No. 08-2360. 5. The Registrar issued a Citation and Complaint in Case No. 08-2360 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (1), prior (7), (17), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 6. The Registrar forwarded Case No. 08-2360 to the Office of Administrative Hearings, an independent agency, for a formal hearing. 7. The Registrar issued a Notice of Hearing in Case No. 08-2360 advising the parties of the time, date, and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 8. The commencement of the formal hearing in Case No. 08-2360 was delayed minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. As a result of the hearing, the assigned Administrative Law Judge issued an Administrative Law Judge Decision in Case No. 08-2360 that was adopted with modifications by the Registrar. 10. Respondent filed a petition for rehearing in Case No. 08-2360 contending that Respondent had moved and did not receive the Notice of Hearing. On August 26, 2009, the Registrar denied Respondent’s request for a rehearing. 11. On October 5, 2009, Respondent filed a complaint for judicial review of administrative hearing. 12. On June 10, 2010, Superior Court Judge Crane McClennen issued an Order remanding the case back to the Registrar for a rehearing. 13. The Registrar re-designated the case as Case No. 2008-23601210 and forwarded the case to the Office of Administrative Hearings for a rehearing. 14. The Registrar issued a Notice of Rehearing in Case No. 2008-23601210 that advised the parties of the time, date, and location of the formal rehearing. The Notice of Rehearing was sent to the parties at their addresses of record with the Registrar. 15. The commencement of the rehearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the rehearing in Respondent’s absence. 16. In March of 2005, Respondent completed the majority of Complainant’s landscaping project. However, there were issues with the low intensity lights installed by Respondent. 17. After Respondent failed to correct the issues with the low intensity lights, Complainant contacted the product manufacturer. The manufacturer indicated to Complainant that Respondent had used inferior 12-gauge wiring instead of 8-gauge wiring. Complainant hired a licensed contractor recommended by the manufacturer and the lighting issues were then resolved. 18. In April of 2006, a second electrical problem developed with the waterfall and a barbeque installed by Respondent. 19. Complainant hired an electrician to inspect the waterfall. The electrician discovered the following errors: there were no ground fault interrupter (“GFI”) breakers; and, 90-degree square conduit bends were used for the barbeque, instead of 90-degree bell curve conduit curves. 20. Respondent failed to complete remedial repairs to the waterfall and barbeque. Such failure is found to be an abandonment by Respondent. 21. Respondent is found to have exceeded the scope of its Class K-21 contracting license by contracting to perform plumbing work for the gas supply to Complainant’s barbeque. However, such work was discovered beyond the Registrar’s two-year jurisdiction. 22. In early 2008, Complainant could not operate his barbeque. A black iron pipe for the gas line had deteriorated. This item is beyond the Registrar’s two-year jurisdiction. 23. Respondent’s failure to install Complainant’s lighting system to workmanship standards and its failure to remediate its deficient workmanship are wrongful acts that substantially injured Complainant. 24. A review of the Registrar’s official public electronic records reveals that Respondent’s contracting license expired on September 1, 2010. In addition, Respondent’s license was suspended on January 26, 2011, until Respondent complies with a Registrar Order. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the expiration and suspension of Respondent’s contracting license does not deprive the Registrar of the authority to discipline that license for proven statutory and regulatory violations in this matter. 3. Pursuant to A.R.S. § 32-1155(A), the Registrar has jurisdiction to charge a licensee for statutory and regulatory violations occurring within two years from the commission of the violation. Therefore, the Registrar only has jurisdiction against Respondent for acts or omissions that occurred within two years of the February 19, 2005 completion date, unless Respondent was performing remedial repairs to any deficient workmanship but only for such repairs. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (1) by abandoning Complainant’s project. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, by not performing work in a professional and workmanlike manner. 6. Respondent violated the provisions of former A.R.S. § 32-1154(A) (7). Respondent’s wrongful acts and omissions described in the above Findings of Fact caused substantial injury to Complainant. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (17). While there is clear evidence that Respondent exceeded the scope of its contracting license by performing plumbing work on Complainant’s project, such activity occurred beyond two years from the filing date of Complainant’s Complaint with the Registrar. Therefore, the Registrar lacks authority to impose discipline upon Respondent for this violation. 8. The evidence of record failed to establish that Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 332- 1124(B). Complainant failed to present any evidence to support this allegation. 9. Complainant seeks restitution in the total amount of $3,504.03, pursuant to A.R.S. § 32-1156.01. The Administrative Law Judge declines to exercise the discretion to award restitution in this matter. Complainant did not introduce a written contract with Respondent for the landscape project. Therefore, the Administrative Law Judge cannot determine if the invoice from Sunshine Irrigation & Light, Inc. covers work within Respondent’s original scope of work or if it covers additional work. Complainant presented two invoices for rockwork. However, the Administrative Law Judge cannot determine if such work was within the scope of Respondent’s contractual obligation. There is an invoice from Arizona Outdoor Kitchens for the removal and replacement of the barbeque grill, tile border and concrete base for the grill. However, it is unclear if such work was necessary to correct the plumbing issues. And the last invoice submitted is for gas line work performed by BBQ Grills Gone Wild. That subcontractor’s business card and invoice do not list a contractor’s license number issued by the Registrar. RECOMMENDED ORDER ON REHEARING Respondent’s License No. 177981 shall be revoked on the effective date of the Order entered in Case No. 2008-23601210. 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 day, August 1, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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