ALJDEC decisions subject to certification as final

2010A-308476633-ROC · Registrar of Contractors · 2011-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Jarrett Gorman. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class B (No. 167143) License was suspended on February 7, 2011, for lack of bond. 2. This is a residential matter where the Respondent performed construction work on the Complainant’s residence for the sum of $110,000.00. 3. There was no dispute that as a part of the Respondent’s construction work, the Respondent caused a licensed plumber to install a tankless hot water system in the Complainant’s residence. 4. Credible testimony and evidence established that on September 10, 2010, the Complainant noticed that the tankless hot water system was leaking. 5. The Complainant notified the Respondent of the problem and the Respondent referred the Complainant to the plumbing subcontractor. 6. Credible testimony and evidence established that the Respondent expected the subcontractor to resolve the reported problems with the tankless hot water system without the Respondent’s involvement. 7. Credible testimony and evidence established that the Complainant then attempted to notify the plumbing subcontractor of the problem with the tankless hot water system. 8. Credible testimony and evidence established that Complainant was finally able to contact the plumbing subcontractor on September 17, 2010. 9. Credible testimony and evidence established that the plumbing subcontractor refused to perform any corrective action on the tankless hot water system on the basis that the plumbing subcontractor only guaranteed its work for a period of one year. 10. Credible testimony and evidence established that the Complainant then contacted the manufacturer of the tankless hot water system and was referred to alternative plumbing contractor. 11. The alternative license plumbing contractor then inspected the Complainant’s tankless hot water system and informed the Complainant that the tankless hot water system had failed because it was improperly installed and that the improper installation had voided the warranty on the tankless hot water system. 12. Credible testimony and evidence established that the tankless hot water system had not been installed in accordance with the manufacturer’s instructions and that it failed to comply with applicable code requirements and workmanship standards. 13. The Complainant then ordered replacement parts through the alternative licensed plumbing contractor to correct the tankless hot water system and attempted to give the Respondent’s plumbing contractor an additional opportunity to install the new parts and correct the problems with the tankless hot water system. 14. Credible testimony and evidence established that the Complainant contacted the Respondent’s plumbing subcontractor and was informed that the plumbing subcontractor did not feel that he knew how to properly correct the tankless hot water system. 15. Credible testimony and evidence established that the Complainant then contacted the Respondent and was informed that the Respondent was done with the problem with the Complainant’s tankless hot water system. 16. The Complainant then retained the alternative licensed plumbing contractor to properly correct the tankless hot water system. 17. Credible testimony and evidence established that the Complainant paid the alternative plumbing contractor a total of $1,344.95 for parts and labor for the proper correction of the Complainant’s tankless hot water system. 18. The Complainant then filed a formal complaint against the Respondent with the Registrar of Contractors seeking restitution for the Complainant’s costs of causing the tankless hot water system to be properly corrected. 19. Credible testimony and evidence established that the Complainant’s actions, in causing the tankless hot water system to be corrected by an alternative contactor after being without hot water in his residence for over two weeks, were reasonable and justified under the circumstances. 20. Credible testimony and evidence established that the Complainant’s cost of $1,344.95 was reasonable and justified and that it is the actual amount that the Complainant paid the alternative licensed plumbing contractor to properly correct the Complainant’s tankless hot water system. 21. Credible testimony and evidence established that the Respondent as a licensed general contractor is fully responsible for the errors and omissions of its subcontractors. .. 22. Credible testimony and evidence established that the initial installation of the tankless hot water system in the Complainant’s residence failed to comply with applicable workmanship and industry standards and that the installation of the tankless hot water system failed to comply with the manufacturer’s recommendations. 23. The Respondent is found to be fully responsible for the cost of causing the Complainant’s tankless hot water system to be properly corrected.

24. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. A.R.S. § 32-1156.01 provides that an administrative law judge may recommend that a licensee provide restitution to any person who injured or whose property is damaged by an action of the licensee. 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $1,344.95 to the Complainant as restitution for the Complainant’s actual cost of causing the tankless hot water system in his residence to be properly corrected.. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that this matter be closed. 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, March 31, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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