ALJDEC decisions subject to certification as final

2011A-5609-ROC · Registrar of Contractors · 2012-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2012, at 1:00 p.m. APPEARANCES: Complainant Warren Makiyama appeared on his own behalf; Respondent Ryco Plumbing, L.L.C. appeared through Ryan Michael Hall, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 37.191213-D for dual plumbing to Ryco Plumbing, L.L.C. (“Respondent”). The Registrar received a complaint from Warren Makiyama (“Complainant”) about Respondent’s installation of a composite granite sink at Complainant’s residence at 3235 East Linda Lane, Gilbert, Arizona. Complainant requested that the Registrar require Respondent to refund $173.25 of the $272.25 that he had paid for the job. The Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on March 21, 2012. Complainant submitted seven exhibits and testified on his own behalf. Respondent presented the testimony of its qualifying party and member, Ryan Michael Hall. Additional Evidence Complainant purchased a new faucet and a composite granite kitchen sink from Lowe’s home improvement store. In September 2011, Complainant called Respondent to discuss the terms under which it would agree to install the sink. Respondent stated that it charged $99.00 per hour and that kitchen sink installations usually took three to four hours. Complainant scheduled a service call. On September 27, 2011, at 1:23 p.m., Respondent’s service technician, Lonnie, arrived at Complainant’s residence to install the composite granite sink. Lonnie proceeded to disassemble and remove Complainant’s existing kitchen sink and faucet. When Lonnie took the composite granite sink from Lowe’s out of its box, he saw that the hole for the reverse osmosis (“RO”) line would need to be punched out to configure the sink to Complainant’s requirements. Lonnie called Mr. Hall, who informed him that Respondent’s policy was that it does not modify sinks that it does not supply because if sinks were damaged during the modification due to a manufacturing defect, Respondent might be liable. Mr. Hall testified that composite granite is brittle and temperamental. Since Respondent does not have any relationship or “pull” with Lowe’s, it likely would not provide a warranty for excess breakage due to a manufacturing defect. Lonnie informed Complainant that Respondent would not knock out the hole for the RO line. Complainant asked Lonnie to reinstall the sink that he had removed with the new faucet that Complainant had purchased from Lowe’s. Lonnie put Complainant’s old sink in the counter and installed the new faucet. Lonnie started cleaning up the jobsite and noticed that the hot and cold water lines to the new faucet were reversed. Because Complainant was due at work at 4:00 p.m., he said that he would finish cleaning up the jobsite. When Lonnie pointed out the reversed hot and cold water lines, Complainant said that he would also change the water lines. Lonnie stopped working at Complainant’s residence at 4:09 p.m. on September 27, 2011. Because Respondent charges customers in 15-minute increments, Lonnie prepared an invoice for 2-3/4 hours for his time at the jobsite. Complaint gave Lonnie a personal check made payable to Respondent for the full amount of the invoice, $272.25. Complainant noticed that the RO line was leaking and called Respondent. Complainant’s minor child let Lonnie back into the residence to repair the RO line leak and reverse the hot and cold water lines, at no additional charge. Complainant submitted photographs of the caulk that Lonnie had applied on the new faucet and around the corners of the old sink, which Complainant testified evidenced poor workmanship. Complainant testified that after he took the photographs, he cleaned the excess caulk from the faucet and kitchen counter. Mr. Hall testified that Respondent uses Dap caulk because it has a long set-up time and that if the caulk is wiped immediately after application, it will run. Mr. Hall testified that because Complainant did not allow Lonnie to perform cleanup at the jobsite, he did not have time to allow the caulk to set. Complainant returned the composite granite sink to Lowe’s for a full refund. Complainant testified that he was willing to pay Respondent $99.00 for one hour to install the new faucet. Complainant argued that Respondent should reimburse him $173.25 because although it advertises itself as a full-service plumber, it did not install the composite granite sink. Mr. Hall testified that although he would have liked to have resolved Complainant’s complaint before the hearing, he did not believe that Respondent did anything wrong. Due to recent economic difficulties in the construction industry and the fact that Respondent’s profit margin was only 8%, it was easier for him to argue the case. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] At the time Complainant scheduled the service call for Respondent to install the sink from Lowe’s, neither party knew that a hole for the RO line would need to be knocked out. Respondent did not contract to install the sink for a fixed price, regardless of unforeseen circumstances, but only contracted to charge $99.00 per hour for time spent on the job. Therefore, Complainant did not establish that Respondent, by failing to install the composite granite sink, violated A.R.S. § 32-1154(A)(2) by departing from plans, specifications, or code.[5] The Registrar does not require contractors to provide a warranty for materials that they do not supply to a job. The Registrar also does not require contractors to modify materials that they do not supply or to accept the risk of potential damage caused by their modifications. Therefore, Complainant did not establish that by failing to install the sink, Respondent violated A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108, by failing to perform its contracting work in a professional or workmanlike manner.[6] Because construction is not a perfect art, the Registrar generally requires that contractors be afforded an opportunity to correct workmanship deficiencies before their licenses are disciplined. Because Complainant did not allow Respondent to complete the job by performing cleanup, Complainant also did not establish that Respondent violated A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, by leaving excess caulk on the faucet and counter around the sink. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar dismiss Complainant Warren Makiyama’s complaint in Case No. 2011-5609 against Respondent Ryco Plumbing, L.L.C.’s License No. K-37.191213-D. 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 9, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1101 et seq. [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] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [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.” [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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