ALJDEC decisions subject to certification as final

2010A-308475826-ROC · Registrar of Contractors · 2011-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Managing Member and Qualifying Party, Anthony Pellegrino.

WITNESSES: Rick Oelke, ROC Inspector Ron Walker Anthony Pellegrino

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming failure to comply with local building code by Respondent. The claim arises out of Respondent’s installation of recessed lights at Complainant’s home. Respondent denies the allegation. This tribunal entered the complaint file received from the Registrar of Contractors into the record. 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-11.185227-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install and repair electrical systems for both residential and commercial construction projects. Anthony Pellegrino is the Qualifying Party. 2. The parties entered into a verbal agreement in March 2010 for Respondent to install approximately 30 recessed ceiling lights in Complainant’s home. Complainant was having remodeling work done at the time and acting as an owner/builder, contracting out the various portions of the work as a general contractor would. There was no discussion as to the type of lights to be installed. 3. Anthony Pellegrino testified that there was no finished ceiling in the home when he entered into the verbal contract with Complainant’s wife. He testified that he routinely installs non-IC-rated fixtures, meaning lights with housings that cannot be in direct contact with combustible materials such as insulation. He normally assumes that after the ceilings are closed with drywall and insulation is about to be installed in the attic space, the insulators will install covers (or “shrouds”) over the lights and prevent the insulation from touching the housings. IC-rated lights, which can contact insulation, are more expensive than non-IC rated lights. Pellegrino testified that he does not normally install IC-rated lights unless specifically asked to do so. 4. Complainant filed his ROC complaint asserting that it is against the building code to install the lights as Respondent did. Complainant paid the insulation installers to cover the lights before they sprayed the insulation in the attic space. 5. ROC Inspector Rick Oelke inspected the lights on October 6, 2010. He did not go into the attic space, but observed the lights from below. He found that the installation of the non-IC-rated lights was not unusual in that situation. He issued a letter to the parties that declined to issue a Corrective Work Order, stating instead: “Non-I.C. recessed light housings have been verified to have been installed, however, documentation specifying the type of lighting to be installed was not available at the time of the jobsite inspection.” He testified that industry standards called for use of either IC-rated lights or non-IC-rated lights with shrouds. Thus, he found no violation. 6. The evidence does not show a violation of plans, specifications, or building codes.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2)(failure to comply with plans, specifications, or building codes). As found above, the evidence does not show a violation. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Ampy Electric LLC 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, April 25, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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