ALJDEC decisions subject to certification as final

2010A-308475345-ROC · Registrar of Contractors · 2011-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: April 5, 2011, at 10:00 a.m. and July 12, 2011, at 1:00 p.m. APPEARANCES: Complainant Mary D’Ambrosio appeared on her own behalf at the July 12, 2011 hearing date; Respondent Noah’s Plumbing, L.L.C. appeared at both hearing dates through Ryan Anthony Trader, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In December 2009, the Arizona Registrar of Contractors (“the Registrar” or “the ROC”) issued License No. ROC261131, Class C37R for residential plumbing excluding solar to Noah’s Plumbing, L.L.C. (“Respondent”). On August 23, 2010, the Registrar received a complaint against Respondent from Mary D’Ambrosio (“Complainant”) alleging that Respondent had repaired exterior plumbing at her house at 2427 North 20th Drive, Phoenix, Arizona, but had failed to repair interior plumbing pursuant to its qualifying party’s verbal promise. The complaint was assigned to the Registrar’s inspector, Craig Williams, for investigation. Inspector Williams performed a jobsite inspection. On October 12, 2010, Inspector Williams sent a letter to the parties, restating Complainant’s various specific complaints against Respondent, followed by an explanation of the reasons the Registrar had determined not to take any action on the complaints, in relevant part as follows: 1. The bath faucet leaks and at all time [sic] the U-pipe leaks. The contractor never got approval for the repair work and Ms. D’Ambrosio thought the work should be free. No action required of the contractor.

2. Mr. Trader said “Free” I’ll throw it in with the original price. I inspected the plumbing and it does need repair, but the contractor never got approval for the job. No action required of the contractor.

3. He did not show up. The ROC has no jurisdiction over anyone about keeping appointments/showing up for appointments. No action required of the contractor.

4. The 4th appointment he came, asked who would pay – he did not repair. The contractor did not do the repair because no one would approve or pay for it. No action required of the contractor.

5. He upset me taking 5 photos not pertaining to repair. The ROC has no jurisdiction over photos of job site projects. No action required of the contractor.

6. He has no signed release for photos. This inspector cannot determine whether permission was granted. “He said, she said”. No action required of the contractor.

7. He said he’ll bring 2 photos – water heater and faucet. He did not. Photos delivered to homeowner at the time of this inspection. No action required of the contractor.

8. I said I will sue if for any reason unrelated photos ever turn up or anyone sees them, secretly or not. He made comments to advocate at AZ Dept. Health Services. The ROC has no jurisdiction over anyone’s right to go to court or to sue. That is an individual’s decision to make. No action required of the contractor.

9. He works with Magellan. I am mentally disabled – birth [sic]. The contractor corrected/replaced the leaking water line from the meter to the house. The contractor was not hired to do any other work at the time. No action required of the contractor.

10. He may have orders from Magellan to take photos – why? Per a telephone conversation with the Team Leader for Ms. D’Ambrosio, they only hired the plumber to take care of the water line from the meter to the house. They never saw the photos and the homeowner will not allow them to enter house. Magellan Health Services is a psychiatric care company. No action required of the contractor.

11. He created security risk – photos – right to privacy. The contractor gave the photographs to Ms. D’Ambrosio. No action required of the contractor.

12. His helper Justin said I accidentally took 2 or 3 photos of hall. This inspector has no way to determine the number or subject of the photos. No action required of the contractor.

13. Hall has no plumbing! Homeowner statement, no issue, no action. No action required of the contractor.

14. I want the 5 photos now. Photos were addressed in previous items #5, 6, 7, 10, 11 and 12. No action required of the contractor.

15. Search and invasion of privacy. The ROC has no jurisdiction over this type of issue. Homeowner can try a different venue. No action required of the contractor.

16. Releasing photos to Magellan. Per Ms. D’Ambrosio’s health care team leader at Magellan, they have not seen any photos of Mary’s home. No action required of the contractor.

17. My emotional level is anxious, insecure, worried, agitated. The ROC has no jurisdiction over anyone’s emotional level. No action required of the contractor.

18. Cannot be trusted – he said the job would be free. “He said, she said”, this inspector cannot determine what was said. No action required of the contractor.

19. I am angry, not tough enough. The ROC has no jurisdiction over this issue. No action required of the contractor.

20. He came Thurs. Aug. 29 – 10 for floater toilet emergency. He left saying faucet is repaired – it still leaks a lot (same). No photos – toilet is repaired. The contractor was not authorized/contracted to repair the faucet. No action required of the contractor.

(Emphasis in original.) Complainant requested a hearing on her complaint. On November 23, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1) and (2). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that its contract to repair the exterior plumbing at Complainant’s house was with Holly McCartar of Choice Network, Inc. and that it had no verbal agreement with Complainant to repair additional plumbing at no additional cost. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. A hearing was scheduled on April 5, 2011, at 8:00 a.m. After Complainant requested that the hearing be continued to a later time because she relied on public transportation, the hearing was continued to April 5, 2011, at 10:00 a.m. Because Inspector Williams had been promoted, Inspector Eric Ulinger appeared at the April 5, 2011 continued hearing to testify about the Registrar’s policies. Respondent’s qualifying party and member, Ryan Trader, and employee, Justin Pogue, also appeared. Although the start of the duly noticed April 5, 2011 continued hearing was delayed until 11:00 a.m. to allow Complainant additional travel time, she did not appear or contact the OAH to request that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence at the first hearing date to prosecute her complaint. Because Complainant had filed numerous documents indicating her desire for a hearing on the merits, the Administrative Law Judge on her own motion scheduled a further hearing on July 12, 2011, at 1:00 p.m. A further hearing was held on July 12, 2011. Inspector Ulinger testified about the Registrar’s policies. Complainant appeared and testified on her own behalf. Mr. Trader testified on Respondent’s behalf and submitted one exhibit. Additional Hearing Evidence Complainant has been determined to be seriously mentally ill (“SMI”) under A.R.S. § 36-550(4). As a result of her SMI status, Complainant is eligible for services from the State of Arizona, Arizona Department of Health Services (“ADHS”) to help her remain in the community.[1] Magellan Health Services of Arizona (“Magellan”) is the Regional Behavioral Health Authority with whom ADHS has contracted to render behavioral health and other supportive services that are available to Complainant as a result of her SMI status. Magellan subcontracted to Choice Network, Inc. the responsibility to provide behavioral health and other supportive services to Complainant. The water main in Complainant’s front yard developed a severe leak. On or about February 17, 2010, Respondent submitted a proposal to Holly McCartar, Complainant’s case manager at Choice Network, Inc., to replace the water main to Complainant’s house “as an Urgent manner” because Complainant was “losing 2-3 Gals. every min.,” for a total price of $711.41. Ms. McCartar, on behalf of Choice Network, Inc., accepted the proposal and instructed Respondent not to enter the interior of Complainant’s residence during the course of its repair. Respondent replaced the water main to Complainant’s house. Due to the amount of time that the water main had been leaking, Complainant’s front yard had settled substantially, and Respondent brought in additional soil to restore the front yard elevation and prevent a trip hazard. As a result, on or about April 21, 2010, Respondent submitted a change order to Choice Network, Inc. in the amount of $84.50 for the additional cost of the soil replacement. On or about April 21, 2010, Ms. McCartar accepted Respondent’s replacement of the water main in Complainant’s front yard, and Choice Network, Inc. paid Respondent the full final invoice amount of $795.50. Choice Network, Inc. did not approve any plumbing repairs at Complainant’s house, other than the water main replacement. Choice Network, Inc. did not authorize Respondent to perform or agree to pay Respondent for any additional plumbing repairs at Complainant’s house. Complainant testified consistently with her complaint at the hearing. Complainant testified that Mr. Trader told her that because Respondent’s work was very slow, he would “throw in” repairs to Complainant’s bathroom with the water main replacement at no additional cost to Choice Network, Inc. or to Complainant. Mr. Trader denied ever offering or promising Complainant that Respondent would repair the plumbing in her bathroom for free. Mr. Trader testified that Respondent’s business practice is to perform construction work only pursuant to a written proposal that the customer has accepted by signing. Respondent submitted its signed proposal, change order, and final invoice to Choice Network, Inc. for the water main replacement at Complainant’s house. Mr. Trader testified that after Respondent replaced the water main at Complainant’s house, she complained that the replacement caused damage to the interior plumbing at her house. Mr. Trader testified that Complainant’s house was constructed in the late 1950’s or early 1960’s and had the original galvanized steel plumbing pipes. Mr. Trader testified that he and Mr. Pogue entered Complainant’s house with her permission to inspect the interior plumbing, and discovered that although the interior plumbing at Complainant’s house was not in good condition, Respondent’s replacement of the water main did not damage the interior plumbing. Inspector Ulinger testified that because work that is performed for free does not constitute contracting, the Registrar has no jurisdiction to enforce a contractor’s alleged promise to perform work for free. Inspector Ulinger testified that the Registrar therefore does not require contractors to perform work for free as a condition of keeping their licenses in good standing. CONCLUSIONS OF LAW A.R.S. § 32-1101(A)(3) defines “contractor” as someone who undertakes “for compensation” to repair a structure or to connect such structure to utility service lines. Because Respondent’s alleged oral promise to repair the plumbing in Complainant’s bathroom was not given in exchange for any promised compensation, Respondent did not perform “contracting” as defined by statute. Therefore, the Registrar lacks jurisdiction over Complainant’s complaint. Even if Respondent’s alleged oral promise constituted contracting as defined by statute, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Mr. Trader’s testimony that Respondent only performs contracting pursuant to a written contract and that he did not promise to perform free work for Complainant was credible. Therefore, Complainant did not establish that Mr. Trader orally promised that Respondent would repair her bathroom plumbing for free. Therefore, Complainant has not borne her burden to establish that Respondent violated A.R.S. § 32-1154(A)(1)[4] or (2).[5] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 2010-[number redacted] against Respondent Noah’s Plumbing, L.L.C.’s License No. 261131. 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 27, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.A.C. R9-21-202(A)(1)(a) and (c)(i) and (ii). Normally, information regarding a person’s SMI status is confidential, but Complainant waived confidentiality by disclosing her status in her complaint to the Registrar. Because Respondent did not contract with Complainant, but she was a third- party beneficiary of its contract with Choice Network, Inc., it is necessary to explain Choice Network, Inc.’s role in entering into a contract with Respondent to pay it to repair the water main at Complainant’s house. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [5] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”

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