ALJDEC decisions subject to certification as final

2012A-1001-ROC · Registrar of Contractors · 2012-09-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 12, 2012, at 1:00 p.m. APPEARANCES: Malcolm Giles (hereinafter “Complainant”) appeared on his own behalf. Micor Technical Services Inc dba Micor E D C (hereinafter “Micor”) appeared through its attorney, Mark A. Hanson, Esq. of Schern Richardson PLC. 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. Micor is the holder of License No. K-11.200945-D issued by the Registrar of Contractors. 2. This is a residential matter where Micor performed construction work at Complainant’s residence and submitted an invoice for its labor involved in removing a motion sensor from and trouble-shooting problems with Complainant’s landscape lighting, in the total sum of $491.13, with $155.13 to be paid in cash and the remainder in “points” in a barter club that both parties belong to. 3. Complainant declined to pay the invoice and filed a formal complaint against Micor with the Registrar of Contractors alleging that Complainant had not authorized Micor to perform any work at his residence and that Micor removed two lights and 50 yards of electrical wire from his residence without Complainant’s permission. 4. Pursuant to the filing of the formal Complaint, an assigned Agency inspector, Scott Deering (hereinafter “Inspector Deering”), conducted an onsite inspection. Inspector Deering issued a written Corrective Work Order on April 10, 2012, directing Micor to perform designated corrective work on Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: Complaint # 1-The Contractor came out to bid on a job for me. I did not authorize any work to be completed or charged. He did not provide us with any lights/lamps. He did not remove a motion sensor, he flipped a switch on the back of the current motion sensor. He should only have been here for 30 minutes to provide a bid for future services. He actually took two lights from the home and never returned them. He pulled 50 yards of wire from my courtyard with no authorization from me. He plugged a hole in the fountain. I tried to call and speak to the President, Scott Milburn, but he yelled and screamed at me and wouldn’t let me speak. I want my two lights returned. I want my 50 yards of electrical wire returned. I want him to unplug the [hole] in the ground because my fountain will no longer drain properly.

Contractor to correct the plugged pipe drain in the fountain floor and replace the wire pulled from the courtyard landscape lighting by the appropriate means. Inspector cannot verify the Respondent did not return the fountain lights.

6. Inspector Deering testified that he observed a fountain in the courtyard that had wires in a PVC tube that had been sealed with silicone. Complainant stated that the PVC tube was also utilized as a drain for the fountain. Micor acknowledged that it filled the tube with silicone so that it could not be used for drainage. Micor acknowledged that it had removed approximately fifty feet of deteriorated electrical wire that ran from one landscape planter to another landscape planter in Complainant’s yard.[1] 7. Inspector Deering testified that he conducted a pre-hearing inspection on September 11, 2012, and observed that no corrective work had been performed. Inspector Deering stated that a written contract should have been utilized for the construction project. Inspector Deering acknowledged that the provisions of A.R.S. § 32-1158(B) applied to contracts between contactors and property owners for construction in amounts of more than one thousand dollars.[2] 8. Complainant testified that he spent an hour with Micor’s representative going through a list of twenty-five items for which Complainant wanted Micor to prepare a bid. Complainant stated that Respondent’s onsite representative asked if Complainant would like him to repair Complainant’s motion detector while the representative was there. Complainant acknowledged that he gave authorization for the repair of the motion sensor lights.[3] 9. Complainant denied that he gave Micor authorization to perform any other work. Complainant stated that he got a text during the day asking if the Complainant would like new lights. Complainant stated that when he found that Micor’s representative was still at his residence, he asked Micor’s representative to leave his residence. Complainant stated that he thought Micor’s work at his residence would only take a “few minutes.”[4] 10. Complainant stated that Micor plugged the drain to his fountain. Complainant stated that he did not give authorization to Micor to plug the drain or to remove 50 feet of wire from his property. Complainant stated that he was unaware of any work that Micor was performing at his residence.[5] 11. Complainant testified that Micor had failed to contact him to attempt to comply with the terms of the Corrective Work Order. Complainant then acknowledged receiving a letter from Micor within two days of the issuance of the Corrective Work Order asking for access to Complainant’s property and offering to comply with the terms of the Corrective Work Order. Complainant acknowledged that Micor had also offered to perform the directed corrective work on the weekend before the hearing.[6] 12. Complainant testified that he received a text message dated April 23, 2012, from Micor asking for access to Complainant’s residence to comply with the terms of the Corrective Work Order. Complainant acknowledged that he sent a return text denying access to Micor, stating that he wanted a hearing.[7] 13. Complainant’s denial of access is found to be unreasonable. 14. Ronald Ketelhut (hereinafter “Mr. Ketelhut”) testified that he was the employee who performed a service call for Micor at Complainant’s residence. Mr. Ketelhut stated that nothing was said about Complainant only wanting a bid for proposed construction work. Mr. Ketelhut stated that he performed service work at Complainant’s residence. Mr. Ketelhut acknowledged removing approximately 50 feet of corroded electrical wire from Complainant’s residence and disconnecting two flood lights. Mr. Ketelhut testified that he took one of the disconnected flood lights to the supplier to order new flood lights. Mr. Ketelhut stated that Complainant was informed of everything being done via text throughout the day.[8] 15. A record of Mr. Ketelhut’s text messages to Complainant and Complainant’s text responses kept by Mr. Ketelhut and introduced into evidence as Exhibit R-5. Exhibit R -5 provides, in pertinent part, as follows: [Ketelhut]: The lights in the fountain need to be replaced. They are $143.00 each (there are a total of two). Did you want me to order these?

Malcom Giles-customer: Yes.

[Ketelhut]: I ordered the fixtures. They are approx a week out. You will need a plumber to look at the fountain pump. It either needs to be primed [or] it has a broken impeller. My boss is good friends with the people at 1-800-plumber. I will need to replace about 50 to 60ft of your landscape cable in the courtyard, I pulled most of the bad cable out of the ground. Please give me a call if you have any questions. Thanks and have a great weekend!

Malcom Giles-customer: Why do I need new lights[?]

Malcom Giles-customer: I want to use the old ones.

Malcom Giles-customer: What was done for 7 hours[?]

[Ketelhut]: Referring to your fountain lights: Water got inside the lights, severe corrosion. I could not recondition [them], the landholders/sockets were rusted away. [Ketelhut]: If you change your mind about wanting to replace the fountain lights, let me know soon so you and I don’t get hit with a restock charge, if these are returnable. I can call my supplier first thing tomorrow and cancel the order if need be.

Malcolm Giles-customer: What was done for 7 hrs[?]

[Ketelhut]: A vast majority of that time was spent on your landscape lights/fountain lights. All but two landscape lights are now operational. I pulled approx 50ft of landscape wire which was chafed/frayed, and shorting out. Troubleshooting landscape lights, [T]roubleshoot[ing] fountain lights and pump. Bypassed sensor on the light outside your garage, replaced lamps as listed, ordered your fountain lights, and the time I spent with you before you left this morning.

16. Mr. Ketelhut testified that he sealed the PVC tube in Complainant’s fountain to prevent water from getting into the PVC tube with the electrical wires that were strung through the PVC tube. Mr. Ketelhut stated that there was an apparent drain on the other side of the fountain and that he was unaware that the PVC tube was being utilized as a drain for Complainant’s fountain. Mr. Ketelhut testified that it was common knowledge that it was not a good idea to utilize a PVC tube containing live low voltage electrical wires as a water drain.[9] 17. Mr. Ketelhut testified that on February 9, 2012, Micor wrote off the charge for performing work at Complainant’s residence.[10] 18. Mr. Ketelhut testified he had contacted Complainant and offered to perform the work directed in the Corrective Work Order on two separate occasions and that Complainant had declined to allow access on both occasions.[11] 19. Mr. Ketelhut testified that he would normally perform a service call without a written contract. Mr. Ketelhut acknowledged that he a prepared a list of the twenty-five items reviewed with the Complainant during his onsite meeting with Complainant. Mr. Ketelhut stated that the list had been discarded.[12] 20. Mr. Ketelhut testified that in barter situations, Micor charged for the labor performed on an 80/20 basis, with 80% of the labor being charged in barter points and 20% being charged for on a cash basis, and that all materials and tax were charged on a cash basis.[13] 21. Mr. Ketelhut’s testimony is found to be credible. 22. Complainant testified that he and his wife did not see a work detail/invoice from Micor until a week and one half after Micor had completed its work on Complainant’s property. Complainant stated that his wife was afraid of unknown men working at Complainant’s residence and would never have opened the door for one of Micor’s employees.[14] 23. Complainant testified that Mr. Ketelhut worked on Complainant’s property without Complainant’s permission. Complainant stated that he wanted Mr. Ketelhut to put his flood lights back in place. Complainant acknowledged that he questioned Mr. Ketelhut about spending seven hours working at Complainant’s residence in their text message exchanges shown in Exhibit R-5. 24. Administrative notice is taken of Micor’s prior license record as reflected on the Registrar of Contractors’ public website on September 24, 2012. Such prior license record reflects that License No. K- 11.200945-D of Micor is current. 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 in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Credible testimony and evidence supported findings that establish that Micor has repeatedly attempted to return to Complainant’s residence and comply with the terms of the Corrective Work Order issued in this matter. This Tribunal concludes that the credible testimony and evidence of record is insufficient, and fails, to support a finding that Micor violated the charged provision of A.R.S. § 32-1154(A)(1).[15] 4. Credible testimony and evidence established that Micor sealed a PVC tube in Complainant’s fountain with silicone and removed approximately 50 feet of electrical wire from Complainant’s property without specific authorization from Complainant. This Tribunal concludes that Micor violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[16] 5. There was no dispute that the charge for labor and materials in this matter was for less than $1,000.00. There was no credible evidence that a permit was required for any of the work performed by Micor. This Tribunal concludes that the credible testimony and evidence of record is insufficient, and fails, to support a finding that Micor violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32- 1158.[17] 6. Credible testimony and evidence established that Complainant denied Micor reasonable access to Complainant’s residence to comply with the terms of Corrective Work Order. This Tribunal concludes that the unreasonable denial of access precludes a finding that Micor violated the charged provision of A.R.S. § 32-1154(A)(23).[18] RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, License No. K-11.200945-D of Micor shall be suspended until the Registrar of Contractors receives and accepts written proof that Respondent has either fully complied with the terms of the written Corrective Work Order or was denied reasonable access to Complainant’s residence to comply with the terms of the Corrective Work Order. It is further recommended that if Micor fully accomplishes the above described corrective action or provides acceptable written proof that Complainant has denied Micor reasonable access to Complainant’s residence to comply with the terms of the Corrective Work Order, 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, September 25, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/12/12 Hearing Record (hereinafter “H.R.”) at 19:17-21:51. [2] H.R. at 22:55-28:12. [3] H.R. at 29:10-30:18. [4] H.R. at 20:21-32:34. [5] H.R. at 32:35-35:14. [6] H.R. at 38:04-46:27. [7] H.R. at 46:01-47:25. [8] H.R. at 52:25-1:07:18. [9] H.R. 1:07:20-1:08:44. [10] H.R. at 1:15:50-1:18:31. [11] H.R. at 1:20:17-1:123.16. [12] H.R. at 1:26:30-1:28:57. [13] H.R. at 1:51:25-1:51:53. [14] H.R. at 1:58:20-2:01:27. [15] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [16] A.A.C. R4-9-108 provides as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[17] A.R.S. § 32-1158 provides as follows: A. From and after December 31, 1992 until December 31, 2007, any contract in an amount of more than one thousand dollars and less than one hundred fifty thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner. D. The requirements of this section shall not constitute prerequisites to the formation or enforcement of a contract. Failure to comply with the requirements of this section shall not constitute a defense by either party to an action for compensation, damages, breach, enforcement or other cause of action based on the contract.

[18] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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