ALJDEC decisions subject to certification as final

2010A-308473329-ROC · Registrar of Contractors · 2011-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2011

APPEARANCES: Complainant appeared on her own behalf, accompanied by and assisted by her son Donald Kinsey; Respondent was present and represented by attorney Doug Sutherland.

WITNESSES: William Redman, ROC Inspector Donald Kinsey Mike Lott

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to comply with a Corrective Work Order issued by the Registrar of Contractors. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibits C-1, C-1#2, C-2, C-3, and C-3#2 from Complainant, and R-1, R-2a through R-2g, R-3a and R-3b, R-6, R-7, and R-9 from Respondent. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license K-37.253884-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair plumbing for both residential and commercial properties. Respondent is a sole proprietor and is, therefore, also the Qualifying Party on the license. 2. Respondent admits that while replacing the natural gas line at Complainant’s house, Respondent damaged a water line for the sprinklers.[1] Upon a complaint filed by Complainant, ROC Inspector Redman inspected the property and issued a Corrective Work Order (“CWO”) on June 10, 2010, that ordered Complainant to repair damage to the sprinkler line but not to repair a leaking auto-fill line that feeds the swimming pool. 3. Respondent repaired the sprinkler line. Complainant agreed that the sprinkler line was repaired. Complainant disagrees with Inspector Redman’s conclusion that the auto-fill line was not damaged by Respondent. At the hearing, Inspector Redman testified that he could not conclude that the auto-fill line was damaged by anything that Respondent did because the damage was not close to the area wherein Respondent was digging. Therefore, he concludes that Respondent has complied with the CWO and that no further work by Respondent is necessary. 5. Complainant’s son, Donald Kinsey, testified and presented photographs of the areas in question.[2] His testimony was not clear and was, by his own admission, speculative. He believes that the damage was done by Respondent. 6. Complainant’s evidence is not persuasive. The claim with regard to the auto-fill line is built on speculation and is contradicted by the testimony of the ROC Inspector. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23) and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108, which prohibits poor workmanship. Subsection (A)(23) requires contractors to comply with CWOs. 3. The evidence does not show that Respondent failed to meet minimum workmanship standards. Respondent took responsibility for and corrected the damage he had done. The ROC Inspector inspected the site and credibly testified that Respondent has made the required repairs and is not responsible for any other damage that may be there. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Herbert Michael Lott dba Route Plumbing be dismissed.

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, July 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The ROC Inspector testified that the two lines as Respondent found them in the ground were not separated as required by the building code. [2] Exhibits C-1 through C-3#2. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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