ALJDEC decisions subject to certification as final

2011A-5673-ROC · Registrar of Contractors · 2012-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2011, at 1:00 p.m. APPEARANCES: Complainant appeared on her own behalf. Respondent appeared through its authorized representative, Eric Kaiser. 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. Respondent is the holder License No. K-77.255709-D issued by the Registrar of Contractors. 2. This is a residential matter where Complainant observed water leaking up through her concrete slab in her laundry room. Complainant contacted her home warranty company which suggested Respondent as its preferred plumber. 3. Complainant then contacted Respondent, and Respondent examined the leaking problem in the floor and provided Complainant with an invoice which provided that the plumbing leak could be corrected for the total sum of $750.00. 4. There was no dispute that a portion of Complainant’s concrete slab was going to have to be cut out in order to expose the leaking pipe. 5. Respondent’s representative agreed to replace the cut-out concrete after the plumbing repair was completed. 6. Credible testimony and evidence established that Respondent inadvertently damaged Complainant’s concrete foundation and wood framing when Respondent removed portions of Complainant’s concrete slab. 7. Complainant repeatedly demanded that Respondent return to her residence and properly correct the damages caused by Respondent. 8. When Respondent failed to comply with the Complainant’s repeated demands, Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and October 27, 2011, issued a written Corrective Work Order directing the Respondent to provide Complainant with a list of work completed and a final invoice. 10. Credible testimony and evidence established that Respondent provided Complainant with the requested list and complied with the terms of the Corrective Work Order. 11. During his testimony, the assigned Agency Inspector stated that the letter notifying Respondent of a possible violation of A.R.S. § 32- 1124(B)(display of license) was issued in error. 12. The Respondent is found to be fully responsible for complying with the terms of the oral agreement made by its representative to properly correct the concrete that Respondent damaged when it cut through the concrete slab to expose the leaking pipe. 13. Credible testimony and evidence established that Respondent is fully responsible for the proper correction of the damages that Respondent caused to the concrete foundation and wood framing in Complainant’s residence. 14. Although Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with Respondent’s plumbing work in residence are understandable, construction work, such as that at issue herein, is not a perfect science, and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship, prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given a reasonable opportunity to properly cause the correction of the damage to Complainant’s concrete slab, concrete foundation, and wood framing. 15. There was no dispute that Respondent is not licensed to perform concrete or framing work. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause a properly licensed contractor, of Respondent’s choice and at Respondent’s sole expense, to properly correct the damages to Complainant’s concrete slab, concrete foundation, and wood framing. 16. Apparently, Complainant feels that she should be able to specify the method of repairing her residence. Contrary to Complainant’s position, the Registrar of Contractors does not specify methods of performing corrective action. Instead, the method of performing the required corrective action is left to the licensed contractor which makes such selection at its peril. All completed corrective work must comply with applicable workmanship and industry standards. 17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on May 3, 2012. Such prior License record reflects that License No. K-77.255709-D of Presidio Plumbing with Solar Heating LLC was current and good standing on said date. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues I this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). It “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 (6th ed. 1990). 3. Credible testimony and evidence supported findings which establish that there was no violation of the charged provisions of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B)(display of license). 4. Credible testimony and evidence supported findings which establish that Respondent complied with the terms of the Corrective Work Order issued in this matter and that there is no violation of the charged provisions of A.R.S. § 32-1154(A)(23). 5. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32-1154 (A)(3), namely, A.A.C. 4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that License No. K-77.255709-D of Presidio Plumbing with Solar Heating LLC be suspended until the Registrar of Contractors receives, and accepts, written proof that the Respondent has, at Respondent’s sole expense, caused a properly licensed contractor, of Respondent’s choice, to fully correct the damage Respondent caused to Complainant’s concrete foundation, wood framing, and concrete slab. It is further recommended that if Respondent fully accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall 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, May 3, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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