ALJDEC decisions subject to certification as final

2011A-2122-ROC · Registrar of Contractors · 2012-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 23, 2012, at 8:00 a.m. APPEARANCES: Complainant Reynaldo Guzman appeared on his own and his wife Brenda Guzman’s behalf; Respondent Expert Home Services, L.L.C. was represented by Scott A. Holcomb, Esq., Mariscal, Weeks, McIntyre & Friedlander, P.A. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 61.264599-R for residential limited remodeling and repair contracting to Expert Home Services, L.L.C. (“Respondent”). Don Robert Paz is Respondent’s qualifying party and member. The Registrar received a complaint from Brenda Guzman against “Drain Pro”[2] regarding its repair of water damage and renovations to the master bathroom and kitchen at Mrs. Guzman’s house at 3915 East Emile Zola, Phoenix, Arizona. After it was determined that Respondent had contracted to repair the water damage and renovate Mrs. Guzman’s master bathroom and kitchen using its limited remodeling and repair license, the Registrar opened the complaint against Respondent. The Registrar assigned Mrs. Guzman’s complaint to its inspector, Mark Alyea, for investigation. After Inspector Alyea performed a jobsite inspection, he issued a Corrective Work Order (“CWO”) that required Respondent to perform certain corrective actions within fifteen calendar days, in relevant part as follows: Contractor to correct by appropriate means the following. 1. The electrical switch for the hall bathroom exhaust fan is not turning the fan on or off [and] maybe the fan is bad. 2. The electrical receptacle in the hall bathroom is loose at the top and is coming out of the electrical box. 3. In the kitchen the paint is peeling off the end walls on each side of the pantries, the right wall at the west pantry and the left wall at the east pantry.

No action required of the contractor for the following. Another contractor installed a new toilet in the master bathroom and they corrected the wet drywall issue in the master bathroom.

The Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that it had fully complied with the CWO. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on May 23, 2012. At the hearing, the Administrative Law Judge added Mrs. Guzman’s husband, Reynaldo Guzman, as an additional party Complainant. Inspector Alyea testified. Mr. and Mrs. Guzman (hereinafter, “Complainants”) both testified and submitted two exhibits. Respondent submitted four exhibits and presented the testimony of Mr. Paz. Additional Evidence After a plumbing leak damaged the hall bathroom in Complainants’ house, they made a claim to their homeowner’s insurer. Respondent was hired to repair the damage, including replacing the toilet in the hall bathroom. Respondent also contracted directly with Complainants to renovate the master bathroom and kitchen. The parties’ contract for the additional work was not submitted. Complainants testified that when Respondent enlarged the shower in the master bathroom, it lifted and reset the toilet. Complainants testified that the toilet was cracked, causing it to leak. Mr. Paz denied that Respondent had performed any work to the toilet in the master bathroom. Mr. Paz testified that he was not able to locate an invoice for such work. Mrs. Guzman testified that she twice called Mr. Paz’s father after she saw water on the floor of the master bathroom. Mrs. Guzman testified that Mr. Paz’s father said there was no leak and the water resulted from Complainants’ failure to fully close the shower curtain while they took showers. Complainants then called Roto Rooter Plumbers (“Roto Rooter”).[3] Roto Rooter diagnosed the leak and replaced the toilet at a cost to Complainants of $809.66. Complainants made another claim to their homeowner’s insurer for the damage that the leak had caused in the master bathroom. Complainants paid their $1,000.00 insurance deductible for the repairs. Complainants requested that the Registrar require Respondent to reimburse them for the $809.66 that they paid to Roto Rooter and their $1,000.00 deductible in order to avoid discipline against its license. Mr. Paz testified that Respondent repaired in a professional and workmanlike manner the three items on the CWO. Complainants did not dispute his testimony.[4] CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[6] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] Complainants did not dispute that Respondent complied with the CWO. Therefore, Complainants did not establish that Respondent violated A.R.S. § 32-1154(A)(23). Complainants did not establish that Respondent was responsible for the leaking toilet in the master bathroom. Even if Complainants had submitted evidence to establish that Respondent worked on the toilet in the master bathroom, they hired Roto Rooter to repair the toilet before they filed their complaint to the Registrar against Respondent. Contractors must be afforded an opportunity to inspect their work before the Registrar disciplines their licenses.[9] The Registrar cannot adjudicate or award money damages.[10] Therefore, Complainants did not establish that Respondent failed to perform its work in a professional and workmanlike manner, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar dismiss the complaint of Complainants Brenda Guzman and Reynaldo Guzman in Case No. 2011-2122 against Respondent Expert Home Services, L.L.C.’s License No. C-61.264599- R. 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, June 12, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The caption was amended at the hearing to add Reynaldo Guzman as a party Complainant. Mr. Guzman is Complainant Brenda Guzman’s husband and a co-owner of the property where Respondent performed the work at issue. [2] Mr. Paz is also the qualifying party and member of Schuelke Plumbing, L.L.C., formerly known as Drain Pro Plumbing, L.L.C., License No. K- 37.235819-D for dual plumbing. [3] The Registrar issued License No. C37R.082672-R to Hoffman Southwest Corp. doing business as (“dba”) Roto Rooter Plumbers. [4] Although Inspector Alyea scheduled a prehearing jobsite inspection, Mrs. Guzman cancelled the inspection because she needed to leave town after her father passed away. Mrs. Guzman appeared telephonically at the hearing. [5] See A.R.S. § 32-1101 et seq. [6] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [7] See A.A.C. R2-19-119(B)(2). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] See A.R.S. § 32-1155(C). That statute provides in relevant part as follows: 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. [10] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984).

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