ALJDEC decisions subject to certification as final

2011A-487-ROC · Registrar of Contractors · 2011-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CONSOLIDATED HEARING: August 15, 2011 APPEARANCES: Kay Caldwell appeared telephonically. T J S Electrical Services, Inc. was represented by its authorized representative, Tim Smith. G D Anderson Building Company, L.L.C. was represented by its authorized representative, Gary D. Anderson. Robert Caldwell was not permitted to represent the interests of his mother, Kay Caldwell, but he was permitted to appear as a witness.[1] ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. T J S Electrical Services, Inc. (“Respondent TJS”) is the holder of License No. 201750, a Class K-11 contracting license issued by the Registrar of Contractors (“Registrar”). 2. G D Anderson Building Company, L.L.C. (“Respondent GD”) is the holder of License No. 189313, a Class B contracting license issued by the Registrar. 3. On March 3, 2011, Complainant Kay P. Caldwell filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent G D on a remodeling project at her residence located at 8344 North 4th Street, Phoenix, Arizona. The Complaint also listed Ms. Caldwell’s son, Robert Caldwell, “(on her behalf).” The Registrar designated the Complaint as Case No. 2011-487. 4. On March 7, 2011, Ms. Caldwell also filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent T J S on the same project. The Complaint also listed Ms. Caldwell’s son, Robert Caldwell, “(on her behalf).” The Registrar designated the Complaint as Case No. 2011-482. 5. The Registrar issued a Citation and Complaint in Case No. 2011-482 charging Respondent T J S with violating the provisions of A.R.S. § 32- 1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1158, and (23). 6. The Registrar issued a Citation and Complaint in Case No. 2011-487 charging Respondent G D with violating the provisions of A.R.S. § 32- 1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1158, (18), and (23). 7. The Registrar forwarded Case Nos. 2011-482 and 2011-487 to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. 8. At the commencement of the consolidated hearing, Robert Caldwell was asked by the Administrative Law Judge if he was named as a Co- Complainant solely to represent his 93-year old mother. He stated that was the case. Robert Caldwell did not live at the subject residence during the project or contract with either Respondent. Rule 31 of the Rules of the Arizona Supreme Court govern the representation of a party before the Office of Administrative Hearings. Under that rule, Robert Caldwell could not represent his mother in these proceedings. Ms. Caldwell could represent herself or she could be represented by an attorney licensed to practice in Arizona. After a brief recess, Ms. Caldwell appeared telephonically and represented her interests. Robert Caldwell testified as a witness. 9. Caleb Caldwell, another son of Ms. Caldwell, coordinated the remodeling project of her home. Ms. Caldwell paid the Respondent’s for their work on the project. Case 2011-482 10. Respondent T J S performed the complete electrical rewiring of Ms. Caldwell’s residence. 11. In response to the filed Complaint in Case No. 2011-482, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view Respondent T J S’s electrical work on the subject project. As a result of that inspection, Inspector Alyea issued a Corrective Work Order dated March 10, 2011, that directed Respondent T J S to perform remedial work to five Complaint items. The written directive further determined that no action was required by Respondent T J S regarding nine Complainant items. 12. Inspector Alyea issued an amended Corrective Work Order dated March 21, 2011, that required Respondent T J S to obtain an electrical permit for the work already performed and to comply with local building code requirements. The written directive also required Respondent T J S to correct by appropriate means 12 items of work in the attic space of Ms. Caldwell’s residence. 13. On March 28, 2011, Respondent T J S obtained the required building permit from the City of Phoenix. The permit covered the complete rewiring of Ms. Caldwell’s residence. The building permit noted that “ALL WORK SUBJECT TO FIELD INSPECTOR APPROVAL.” 14. On March 29, 2011, the City of Phoenix building inspector inspected the rough electrical work at Ms. Caldwell’s residence. The rough electrical work failed the inspection. 15. On March 30, 2011, the final inspection by the City of Phoenix inspector passed the electrical work. 16. Respondent T J S performed its scope of electrical work in a workmanlike manner and complied with local building code requirements. 17. At the hearing, Ms. Caldwell failed to present any evidence to establish that Respondent T J S failed to comply with the statutory requirements for a written contract with Ms. Caldwell. Case No. 2011-487 18. Respondent G D was hired to perform work on a room addition to Ms. Caldwell’s residence. 19. According to Ms. Caldwell’s Complaint, she and/or her son, Caleb Caldwell, contracted with Respondent G D on October 20, 2010. The contract was oral, not written as required by statute. 20. According to Ms. Caldwell’s Complaint, Respondent G D completed its scope of work on October 26, 2010. 21. Ms. Caldwell paid Respondent G D the full contract price of $2,500.00. 22. In response to the filed Complaint, Inspector Alyea performed a jobsite inspection to view the Complaint items. That inspection resulted in Inspector Alyea issuing a Corrective Work Order dated March 10, 2011, that directed Respondent G D to timely correct by appropriate means three Complaint items. The written directive determined that no action was required by Respondent G D regarding two Complaint items. 23. Inspector Alyea issued an amended Corrective Work Order dated March 21, 2011, that required Respondent G D to obtain a building permit for the work he performed at Ms. Caldwell’s residence and to correct by appropriate means the securing of the framed walls to the existing house. 24. Respondent G D attempted to schedule repairs days after the deadline dates set forth in the Corrective Work Orders. However, Respondent G D claims that Robert Caldwell unreasonably denied it access to perform the repairs. In light of the fact that Respondent G D had not obtained a building permit for those repairs, such denial of access was not unreasonable. 25. Notwithstanding having reasonably been denied access by Robert Caldwell, there is no evidence that Respondent G D complied with the Registrar’s written directive to obtain the necessary building permit for Respondent G D’s scope of work. Any related costs for obtaining the permit are the responsibility of Respondent G D, who should have included such costs in the parties’ contract price. 26. A review of the Registrar’s official public electronic licensing records reveals that Respondent G D’s contracting license was suspended by operation of law for lack of bond from September 19, 2010, to November 19, 2010. Therefore, Respondent G D contracted while its license was suspended. Respondent’s contracting license is now current. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondents and the subject matters in these consolidated cases. 2. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent G D’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory and/or regulatory violations that occurred during the suspension. 3. Pursuant to Rule 31 of the Rules of the Arizona Supreme Court, Robert Calwell may not represent the interests of his mother in these administrative proceedings. Such representation would constitute the unauthorized practice of law. 4. Pursuant to A.A.C. R2-19-119(B), Ms. Caldwell has the burden of proof in these matters. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). Case 2011-482 5. Ms. Caldwell failed to sustain her burden of establishing that Respondent T J S violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. Respondent T J S performed its scope of electrical work in compliance with local building code requirements, as approved by the City of Phoenix building inspector. 6. Ms. Caldwell failed to sustain her burden of establishing that Respondent T J S violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent T J S completed its electrical scope of work in a workmanlike manner. 7. Ms. Caldwell failed to sustain her burden of establishing that Respondent T J S violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. However, Ms. Caldwell failed to address this charged violation at the hearing. 8. Ms. Caldwell failed to sustain her burden of establishing that Respondent T J S violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent’s completion of its electrical scope of work that was approved by the City of Phoenix building inspector equates to compliance with the Registrar’s two written directives to Respondent T J S. Case No. 2011-487 9. The evidence of record established that Respondent G D violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. Respondent G D failed to obtain the necessary building permit for its scope of work. 10. The evidence of record established that Respondent G D violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent G D failed complete its scope of work in a workmanlike manner pursuant to the Registrar’s written directive and pursuant to the City of Phoenix building code. 11. The evidence of record established that Respondent G D violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. Respondent failed to execute a written contract with Ms. Caldwell and/or Caleb Caldwell that complied with the statutory minimum element requirements. 12. The evidence of record established that Respondent G D violated the provisions of A.R.S. § 32-1154(A) (18), as charged in the Citation and Complaint issued by the Registrar. Respondent G D’s contracting license was suspended at the time it entered into the contract for the subject project and performed work while suspended. 13. The evidence of record established that Respondent G D violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to obtain the required building permit necessary for it to properly comply with the Registrar’s written directives. RECOMMENDED ORDERS Case No. 2011-482 The Citation and Complaint in Case No. 2011-482 against Respondent T J S shall be dismissed on the effective date of the Order entered in the case. Case No. 2011-487 Respondent G D’s License No. 189313 shall be suspended on the effective date of the Order entered in Case No. 2011-487 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent G D has fully complied with the Corrective Work Order dated March 10, 2011, the Corrective Work Order dated March 21, 2011, and the provisions of A.R.S. § 32-1158. If the Registrar receives written proof, and the Registrar approves such proof, that Respondent G D has fully complied with the Corrective Work Order dated March 10, 2011, the Corrective Work Order dated March 21, 2011, and the provisions of A.R.S. § 32-1158 on or before the effective date of the Order entered in Case No. 2011-487, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 189313 shall be placed on suspension for a period of five (5) days, followed immediately by a period of 180 days of probation. This additional disciplinary penalty shall commence of the effective date of the Order entered in Case No. 2011-487 or the date on which the Registrar approves proof of Respondent G D’s compliance with the above-provided terms of the Order entered in Case No. 2011-487, whichever is later. In addition to the above-provided penalties, Respondent G D shall pay the sum of $500.00 for failing to comply with the Corrective Work Order dated March 10, 2011, and an additional sum of $500.00 for failing to comply with the Corrective Work Order dated March 21, 2011, to the Registrar by way of civil penalties pursuant to A.R.S. § 32-1154(D). The failure by Respondent G D to pay the entire amount of the aforesaid civil penalties on or before 30 days following the effective date of the Order entered in Case No.2011-487 shall result in the automatic revocation of Respondent G D’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent G D, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In addition to the above-provided penalties, Respondent G D shall pay the sum of $1,000.00 to the Registrar by way of civil penalties pursuant to A.R.S. § 32-1154(E). The failure by Respondent G D to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. 2011-487 shall result in the automatic revocation of Respondent G D’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent G D, as defined in A.R.S. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered.

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, September 7, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Finding of Fact No. 8.

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