ALJDEC decisions subject to certification as final

2010A-308472893-ROC · Registrar of Contractors · 2012-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 17, 2012, at 8:00 a.m. APPEARANCES: Gery and Amber Cassman (hereinafter “Complainants”) appeared through Gery Cassman. Contract Plumbing LLC (hereinafter “Contract”) appeared through its authorized representative, Aaron James Palmer. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. Contract is the holder of License No. K-37.215079-D issued by the Registrar of Contractors. 2. Complainants’ general contractor abandoned the construction of Complainants’ new residence and Complainants completed the construction of their residence as owner-builders. 3. Contract performed plumbing work as a plumbing subcontractor on Complainants’ new residence. Contract initially worked as a plumbing subcontractor for the general contractor and then performed plumbing construction work directly for Complainants. 4. Complainants informed Contract that they would not pay Contract in full for its completed plumbing work. Contract filed a civil action against Complainants to collect the retention monies that Complainants owed to it, which was designated as Case No. CV2009-0031 (“the civil action”). 5. Complainants then filed a formal Complaint against Contract with the Registrar of Contractors. 6. On July 27, 2010, a Default Judgment was issued in the parties’ civil action awarding a total judgment of $6,170.00 to Contract, including court costs, service fees, and attorney’s fees. 7. Complainants’ written Complaint specifically stated: “This work has already [been] completed by a licensed plumber other than Contract plumber.” 8. The assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), testified that the Registrar of Contractors received the Complaint in the Tucson office on May 7, 2010. Inspector Nieves stated there were 11 items on the Complaint. Inspector Nieves testified he spoke with Complainant Amber Cassman (hereinafter “Mrs. Cassman”) on two or three different occasions and that Mrs. Cassman informed him that the plumbing work at issue had been completed by another contractor and that there was no need for an onsite inspection because Complainants were seeking financial reimbursement. Inspector Nieves stated that he informed Respondent’s attorney, who had requested an onsite inspection, that there would not be an onsite inspection because the work had already been completed by another contractor.[1] 9. Inspector Nieves’ testimony is found to be credible. 10. Complainant Mr. Cassman (hereinafter “Mr. Cassman”) testified that Inspector Nieves misunderstood Mrs. Cassman and that 9 of the 11 items on the Complaint had not been corrected. Mr. Cassman stated that Complainants have a 50-gallon water heater installed in their residence and that the applicable plans and specifications called for the installation of a 75-gallon water heater. Mr. Cassman testified that the 50-gallon water heater was inadequate for Complainants’ residence.[2] 11. Mr. Cassman testified that the hook-up to the gas grill on the back patio and installation of the patio sink, including connection to the drain and water line, have been completed. Mr. Cassman stated that Complainants were seeking reimbursement for cost of two hours of Contract’s labor.[3] 12. Mr. Cassman testified that Contract had failed to properly install the patio sink and that Complainants were requesting the cost of having the patio sink corrected by an alternative contractor.[4] 13. Mr. Cassman testified that there was no second shower head in Complainants’ bathroom. Mr. Cassman stated that the second shower head was in Contract’s bid for the plumbing work. Mr. Cassman acknowledged that he agreed to accept the missing shower head during the construction process and agreed to reach a financial settlement at the end.[5] 14. Mr. Cassman testified that plans and specifications called for the installation of a “gas drop” for the fireplace. Mr. Cassman acknowledged that he informed Contract that he did not want the gas drop. Mr. Cassman stated that he either wanted the gas drop or financial restitution for the missing gas drop. [6] 15. Mr. Cassman testified that plans and specifications called for an “on- demand” hot water heater for the patio sink. Mr. Cassman stated that he wanted $480.00 for the installation of an on-demand water heater for the patio sink.[7] 16. Mr. Cassman testified that Complainants received four hose bibs instead of five and that there is no soft-water hose bib.[8] 17. Mr. Cassman testified that the sink in the laundry room is not anchored properly to the granite countertop. Mr. Cassman stated that he wants restitution of $120.00 to pay another contractor to properly correct the sink.[9] 18. Mr. Cassman testified that the holes in Complainants’ granite countertops were drilled “too big” and all of the countertops required replacement. Mr. Cassman stated that only the plumber would have reason to drill overly large holes in the countertops. Mr. Cassman stated that Complainants were requesting $11,254.00 as restitution for the damaged countertops.[10] 19. Mr. Cassman testified that Contract damaged two new vessel sinks by pouring acid into the sinks. Mr. Cassman stated that Contract agreed to replace the damaged sinks. Mr. Cassman testified that Complainants wanted $1,046.00 as restitution for the cost of replacing the two damaged sinks.[11] 20. Mr. Cassman testified that Complainants refused to pay Contract the final amount due to Contract under terms of their construction agreement and that Contract instituted a civil action against Complainants. Mr. Cassman acknowledged that Complainants defaulted in the civil action and that Contract obtained a civil judgment against Complainants.[12] 21. Mrs. Cassman testified that Inspector Nieves misunderstood her. Mrs. Cassman stated that all of the plumbing issues had not been corrected.[13] 22. Aaron James Palmer (hereinafter “Mr. Palmer”) testified that the shower valve was installed as per Mr. Cassman’s instructions. Mr. Palmer stated that a 50-gallon water heater was installed in Complainants’ residence because there was insufficient room to install a larger water heater. Mr. Palmer testified that Mr. Cassman agreed to the installation of the 50-gallon water heater.[14] 23. Mr. Palmer testified that Mr. Cassman stated that he would call Contract once Complainants’ residence was completed and Contract would then “hook up” the outdoor kitchen. Mr. Palmer stated the plumbing for the cabinet was installed in accordance with the directions of the general contractor who was on the project at that time. Mr. Palmer stated that he offered Mr. Cassman an alternative method of installation and that Mr. Cassman selected the method that was utilized.[15] 24. Mr. Palmer testified that the plans called for a “gas drop” at the fire place. Mr. Palmer stated that Mr. Cassman informed Contract that no fire place would be installed and that Mr. Cassman agreed not to install the gas line. Mr. Palmer testified that there was no need for an on-demand water heater for the outdoor kitchen because Contract was able to get hot water to the outdoor kitchen.[16] 25. Mr. Palmer testified that Contract did not install a soft-water hose bib because Mr. Cassman moved the location of the soft-water system from the garage to the laundry room.[17] 26. Mr. Palmer testified that the laundry room sink was too big for the cabinet and there was nowhere to hook an anchor onto the sink. Mr. Palmer stated that he informed Mr. Cassman of the problem and that Mr. Cassman agreed to the installation of the sink.[18] 27. Mr. Palmer testified that it is industry standard for the granite installer to drill the holes in the granite. Mr. Palmer denied that Contract drilled any holes in Complainants’ granite countertops. Mr. Palmer stated that he informed Mr. Cassman that all of the holes in the granite countertops were too big.[19] 28. Mr. Palmer acknowledged that Contract poured a light sulfuric acid cleaner into Complainants’ master bath vessel sink. Mr. Palmer stated it was a common product available at Home Depot. Mr. Palmer testified that he examined the sink and observed that white ring around the drain was where the sink was not completely polished and that residue from the sink catches on the rough edge around the drain. Mr. Palmer denied that Contract had caused any damage to Complainants’ sink.[20] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Because Complainants had Contract’s plumbing work modified by another plumbing contractor before the complaint was filed, the Registrar of Contractors cannot impose disciplinary action on Contract’s License No. K- 37.215079-D under A.R.S. § 32-1155(C).[21] 4. Even if Complainants had not modified Contract’s work, common-law claims for breach of contract or poor workmanship and abandonment include the same elements as Complainants’ complaint to the Registrar for Contract’s alleged abandonment and departure from workmanship standards in violation of A.R.S. § 32-1154(A)(1) and (3). In this case, resolution of the question of who owes money to whom also resolves the issues raised by the charged statutory violations. Because the civil court has already determined that Complainants owe Contract $6,170.00 and that no injury to Complainant offsets that amount, the doctrine of collateral estoppel precludes Complainants from relitigating the issue of fault, injury, or damages in this administrative forum. 5. Even if Complainants’ complaint was not barred by A.R.S. § 32-1155(C) and the doctrine of collateral estoppel, there was no credible evidence that Contract abandoned or refused to perform plumbing work on Complainants’ residence. This Tribunal concludes that Complainants failed to meet their burden of proof to establish that Contract violated the charged provision of A.R.S. § 32-1154(A)(1).[22] 6. There was also no credible proof that Contract damaged Complainants’ granite countertops or Complainants’ vessel sinks. Changes to the contract were made with Complainants’ knowledge and consent. This Tribunal concludes that Complainants failed to meet their burden of proof to establish that Contract violated the charged provision of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.[23] 7. Finally, the Registrar of Contractors is not empowered to award money damages.[24] In view of the fact that all of the items set forth in the Complaint are correctible, and may have already been corrected by another plumbing contractor, an award of restitution under A.R.S. § 32-1156.01 is not appropriate.[25] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, be dismissed. In the event of certification of this 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 the certification.

Done this day, October 2, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/17/12 Hearing Record (hereinafter “H.R.”) at 22:57-27:54. [2] H.R. at 22:57-35:14. [3] H.R. at 35:15-36:44. [4] H.R. at 36:45-39:10. [5] H.R. at 39:11-41:27: [6] H.R. at 41:30-42:29. [7] H.R. at 42:35-43:13. [8] H.R. at 43:14-44:25. [9] H.R. at 44:26-45:39. [10] H.R. at 45:40-47:55. [11] HR. at 47:57-51:03. [12] H.R. at 52:30-53:34. [13] H.R. at 1:13:00-1:14:20. [14] H.R. at 1:21:15-1:25:00. [15] H.R. at 1:25:01-1:30:35. [16] H.R. at 1:30:36-1:32.49. [17] H.R. at 1:32:50-1:37:13. [18] H.R. at 1:37:14-1:39:54. [19] H.R. at 1:39:55-1:44:14. [20] H.R. at 1:44:15-1:49:41. [21] A.R.S. § 32-1155 provides as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use

[22] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [23] A.A.C. R4-9-108 provides as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards. [24] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [25] 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).

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