ALJDEC decisions subject to certification as final

2008A-48503172-ROC · Registrar of Contractors · 2010-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: July 26, 2010 at 1:00 p.m. APPEARANCES: Complainant Donald J. Smith appeared on his own behalf; Respondent All Pipes Clinic, Inc. appeared through James Mayo, its qualifying party and president. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC192725, Class K-37 for dual plumbing to Respondent All Pipes Clinic, Inc. Respondent installed a drain, shower pan, and ceramic tile surround in a shower in a bathroom at Complainant Donald J. Smith’s residence. Complainant subsequently made a complaint to the Registrar. The Registrar referred the complaint to the Office of Administrative Hearings, an independent agency, to conduct a hearing. A hearing was held before the undersigned Administrative Law Judge on July 30, 2009. On August 6, 2009, the Administrative Law Judge made a recommendation to the Registrar that contained the following conclusions: a. Because Complainant had damaged the shower pan membrane by using a jackhammer to remove the tile and expose the drain, Respondent was not responsible for damage to the shower pan membrane;

b. Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23)[1] because Complainant had not allowed reasonable access for Respondent to comply with the Corrective Work Order;

c. Complainant established that Respondent did not install the drain and ceramic tile shower surround and drain in a professional and workmanlike manner, in violation of A.R.S. § 32-1154(A)(7)[2] and (3)[3]; and

d. Complainant established that Respondent’s construction of the tile surround exceeded the scope of its K-37 dual plumbing license, in violation A.R.S. § 32-1154(A)(17).[4]

Based on these conclusions, the Administrative Law Judge recommended that the Registrar suspend Respondent’s license until it provided satisfactory proof of the following: (1) That Respondent had corrected in a professional and workmanlike manner the drain and excessive slope of the shower floor to the drain, including reinstallation of the shower pan membrane if Complainant made arrangements to repair or to replace the shower pan membrane; and

(2) That Respondent had hired an appropriately licensed contractor to repair the ceramic tile shower surround.

In the alternative, the Administrative Law Judge recommended that the Registrar close the complaint if Respondent provided satisfactory proof of the following: 1) That Complainant had “denied Respondent and its properly licensed subcontractor access to the jobsite to comply with the Registrar’s final order”; or

2) That Complainant had failed to make arrangements to repair or replace the shower pan membrane.

On September 4, 2009, the Registrar accepted the Administrative Law Judge’s recommendations. The effective date of the Registrar’s order was October 14, 2009. On October 7, 2009, the Registrar received a letter from Respondent’s qualifying party, James Mayo, which complained that Complainant had continued to dictate the manner of Respondent’s corrective action. The Registrar sent a copy of Respondent’s letter to Complainant. On October 29, 2009, the Registrar received a letter from Complainant, stating that he had provided reasonable access to the tile contractor whom Respondent had asked to inspect the job and to provide a bid to repair it. Complainant also stated that, although the tile contractor had told him that the drain needed to be relocated, Respondent refused to relocate the drain, which was “why [Complainant] did not want [Respondent] to ever come back to [Complainant’s] home.” On May 12, 2010, the Registrar issued an order setting a compliance hearing in the expedited course of docketing in the Phoenix area. On July 26, 2010, a compliance hearing was held. The Registrar’s inspector, Jim Dimond, testified. Complainant testified and presented the testimony of “Johnny” Dragan of Sephorah Tile and Stone, Inc., License No. ROC217823, Class C-48 for residential ceramic, plastic, and metal tile (“Sephorah”), a contractor that Respondent had asked to submit a bid to repair Complainant’s tile surround. Complainant submitted three exhibits. Respondent’s qualifying party and president, Mr. Mayo, testified. Respondent submitted six exhibits. Compliance Hearing Evidence On September 9, 2009, Complainant and his wife returned from Hawaii with their niece and her two-year-old child. Mr. Mayo first called Complainant on September 10, 2009, to schedule times for Respondent to repair the drain and for an appropriately licensed contractor to look at the tile to prepare a bid to comply with the Registrar’s September 4, 2009 order. Complainant told Mr. Mayo that he did not want any contractors at his home until his guests left. On September 10, 2009, Mr. Mayo sent Complainant a certified letter, again requesting access for Respondent to comply with the Registrar’s order. When Complainant signed the certified receipt, he added the notation, “This is the first attempt, ha ha.” On September 18, 2009, Complainant sent a response to Mr. Mayo’s September 10, 2009 certified letter. Because Complainant’s wife was having eye surgery on September 15 and 21, 2009, Complainant stated that he would not provide immediate access to Respondent. Complainant stated that he would provide access on September 28 through 30, 2009 and on October 5 through October 9, 2009. On September 28, 2009, Complainant allowed Respondent access to repair the drain and shower pan. On October 3, 2009, Respondent sent unlicensed handyman, “Jay,” to inspect Complainant’s shower. Complainant asked “Jay” if he was licensed and, when he replied that he was not, instructed him to leave the property. Mr. Mayo testified at the hearing that he was not aware at the time that his old friend, “Jay,” was unlicensed. On October 7, 2009, Mr. Mayo went to Complainant’s property with an appropriately licensed tile contractor, Mr. Dragan of Sephorah. Complainant met the two men at the door and told Mr. Mayo that he was not allowed on the property. Complainant threatened to call the police if Mr. Mayo did not leave. Complainant allowed Mr. Dragan to inspect the shower. Mr. Mayo testified at the hearing that he believed that Complainant should have allowed him to accompany Mr. Dragan. Mr. Mayo testified that he thought that he could have offered to perform some of the demolition or other work to reduce the cost of repairing the tile shower surround. Mr. Mayo argued that Respondent should have been allowed to obtain three bids to repair the tile. Respondent did not submit any evidence that it arranged for any appropriately licensed contractor other than Sephorah to inspect the shower. On October 8, 2009, Mr. Dragan hand-delivered Sephorah’s bid to repair the tile shower surround at Complainant’s house to Mr. Mayo. The amount of the bid was $4,163.75. On October 10, 2009, Mr. Dragan sent a copy of the bid to Complainant via e-mail. Mr. Dragan appeared at the hearing pursuant to Complainant’s subpoena. He testified that no one contacted him about doing the work after he submitted Sephorah’s bid to the parties. Complainant submitted a report from Allen Wells Blaker of Inspection Specialists. The report stated that a jobsite inspection had been performed on July 2, 2010, and that “[t]he floor drain is not equipped with weep holes for sub-drainage of the bladder under the floor tile.” Mr. Blaker did not testify and the record contains no evidence of his qualifications. Inspector Dimond performed a compliance inspection on July 22, 2010. Inspector Dimond testified that at the compliance inspection, he observed that a new shower pan had been installed but that the tile surround had not been repaired. Inspector Dimond testified that without the tile, he could not render an opinion about whether the shower drain had been repaired to have the proper slope. CONCLUSIONS OF LAW This compliance matter lies within the Registrar’s jurisdiction.[5] Respondent bears the burden of proof to establish by a preponderance of the evidence that it either complied with the Registrar’s final order or that Complainant failed to provide reasonable access for it to comply with the order.[6] Respondent established that it repaired the drain and reinstalled the shower pan membrane, which were the only portions of the Registrar’s order that were within the scope of its K-37 license. Respondent’s reinstallation of the shower pan membrane supports an inference that Complainant had replaced or repaired it. Although Complainant was not satisfied with Respondent’s repair, he did not present substantial or probative evidence that the repair did not comply with the Registrar’s standards. Therefore, Respondent established that it complied with the first part of the Registrar’s order. The parties agreed that Respondent did not hire an appropriately licensed contractor to repair the ceramic tile surround. The only issue at hearing was whether Complainant had allowed Respondent reasonable access to comply with the second part of the Registrar’s order. The Registrar’s final order unequivocally informed Respondent that tile work was beyond the scope of its K-37 license. Respondent had no right to inspect the tile, to participate in its repair, or to condition Respondent’s acceptance of Sephorah’s bid on Mr. Dragan agreeing to allow Mr. Mayo to perform any part of the repair work. After the Registrar issued the order, both parties engaged in gamesmanship to provoke the other into violating the Registrar’s order, Complainant by limiting access to the bare minimum, and Respondent by continuing to insist on being involved in the repair of the tile shower surround. The Registrar only required Complainant to provide reasonable access, not unlimited access. Complainant provided nine days for Respondent to arrange for a properly licensed contractor to inspect Complainant’s shower surround. Respondent squandered its first opportunity by sending an unlicensed contractor. When Respondent finally obtained a bid from Sephorah, six days still remained before the effective date of the Registrar’s order. However, Respondent did not accept the bid or schedule any other appropriately licensed contractors to inspect the shower and to provide bids to repair it. Therefore, Respondent did not establish that Complainant failed to provide reasonable access for it to repair the ceramic tile surround. RECOMMENDED ORDER Based on Respondent All Pipes Clinic, Inc.’s failure to comply with the Registrar’s order, it is recommended that on the effective date of the Registrar’s order, Respondent’s License No. ROC192725, Class K-37 be suspended until Respondent provides proof that it has paid the sum of $4,163.75 to Complainant Donald J. Smith.[7] It is further recommended that if the Registrar receives satisfactory written proof that Respondent has paid Complainant $4,163.75, the Registrar not suspend Respondent’s license but, instead, close Case No. 2008-48503172 (formerly 08-4850). 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, August 11, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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.” [2] This statutory subsection formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” The former statute applies to this complaint. [3] 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 charged 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.” [4] 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.” [5] See 32-1101 et seq.; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] See A.A.C. R2-19-119(B)(2). [7] Sephorah’s bid in this amount was the only bid that Respondent obtained from a licensed contractor to correct Complainant’s tile shower surround, despite having at least nine days to obtain bids from other appropriately licensed contractors. The bid was within the range of the estimated repair cost provided by Complainant’s consultant, Inspection Specialists.

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