ALJDEC decisions subject to certification as final

2012A-1633-ROC · Registrar of Contractors · 2012-09-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2012 APPEARANCES: Sandra and Gerald Draxler appeared personally. Alpha Bell, L.L.C. was represented by its authorized representative, Daniel Olivas. 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. Alpha Bell, L.L.C. (“Respondent”) is the holder of License No. K- 37.241836-D issued by the Registrar of Contractors (“Registrar”). 2. In October 2010, Sandra and Gerald Draxler (“Complainants”) hired Respondent to perform work at their residence located at 8640 West Jenan Drive, Peoria, Arizona. 3. On March 27, 2012, Complainants filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2012-1633. Complainants requested that Respondent be required to remove the installed Zeta Rod system and reverse osmosis system and refund them the total sum of $2,375.00 that they paid for that work. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection on April 19, 2012, to view the Complaint items. Complainants would not permit Respondent’s authorized representative, Daniel Olivas, to be present during the inspection. As a result of the jobsite inspection, Inspector Fleetham issued a Corrective Work Order dated April 20, 2012, that made certain findings and directed Respondent to perform certain corrective actions as follows: Contract does not meet requirements of a contract, a violation of A.R.S. §32-1154.A.13, namely A.R.S. §32-1158 subsection B. Warning letter has been issued

1. Having unlicensed worker on job site during entire install without supervision from the company Alpha Bell LLC, Daniel Olivas which holds the license. • Respondent[‘s] employment of Steve Hetu [an] unlicensed contractor is in violation of A.R.S. 32-1154.A.10 Aiding or abetting a licensed/unlicensed person with intent to evade this chapter. • Warning letters issued and information forwarded to Investigations for Unlicensed activity.

2. Poor workmanship (leakage) from Zeta Rod and not standing behind products, also Reverse Osmosis System. • No leak identified at time of inspection. However, leaking has or is occurring as evidenced by calcification and copper oxidation on piping. • Respondent shall determine cause and correct by appropriate means.

3. Contractor used false and misleading information and sold us a product that does not perform and operate the same as a soft H2O system. • No written record provided at time of inspection detailing false information/advertising.

4. Instructed by installer to pump up the pressure in the gas line to pass inspection. Fittings to copper pipe installed incorrectly. • No deficiency demonstrated or observed at time of inspection • Inspector has no first hand knowledge. • Project has been inspected and approved by the AHJ - City of Peoria

5. Informed by worker Steve Hetu that he is a licensed plumber and gas pipe fitter. • Steve Hetu is not a properly licensed contractor in the State of Arizona – SEE #1

From a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.[1]

5. The Registrar issued a Citation and Complaint in Case No. 2012-1633 charging Respondent with the following violations: A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(10); A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(23). 6. The Registrar forwarded Case No. 2012-1633 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. Respondent’s worker on the subject project was Steve Hetu. Mr. Hetu was a not an employee of Respondent, but rather is an independent contractor. Therefore, Mr. Hetu was required to be properly licensed. Because Mr. Hetu was not licensed, Respondent is determined to have aided and abetted Mr. Hetu, an unlicensed contractor, on the subject project. 8. The Corrective Work Order noted that the parties’ contract on Respondent’s form did not meet the minimum elements of a contract required by A.R.S. § 32-1158. However, the Corrective Work Order did not require any remedial action to be taken by Respondent. 9. The Corrective Work Order also noted that “leaking has or is occurring as evidenced by calcification and copper oxidation on piping.” Respondent was ordered to determine the cause of the condition and to correct by appropriate means. 10. Complainants failed to present credible evidence that there was a deficiency in the gas line installed by Mr. Hetu on behalf of Respondent. In the Corrective Work Order, Inspector Fleetham noted that the gas line had been inspected and approved by the City of Peoria. 11. Complainants failed to present credible evidence to support their allegation that Respondent used false or misleading information concerning the Zeta Rod system. On the contrary, Respondent presented credible evidence that Complainants were advised about the Zeta Rod system and other soft water systems, but they selected the Zeta Rod system. Inspector Fleetham determined at the jobsite inspection that “[n]o written record [was] provided at the time of inspection detailing false information/advertising.” 12. A review of the parties’ contract reveals that Respondent’s contract form does not include the minimum elements required in a construction contract set forth by A.R.S. § 32-1158. The parties’ contract does not contain an estimated date of completion, advise Complainants of their right to file a written complaint with the Registrar, or provide the Registrar’s telephone number and website address.. 13. The evidence of record established that Complainants denied Respondent access to comply with the Corrective Work Order. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 4, 2012. Such prior License record reflects that Respondent’s License No. K- 37.241836 is current with only one open complaint. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent 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. Inspector Fleetham directed Respondent to determine the cause of the calcification and copper oxidation that suggested prior leaks and to correct by appropriate means. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(10), as charged in the Citation and Complaint issued by the Registrar. Respondent aided and abetted the unlicensed contracting activity of Mr. Hetu on the subject project. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. Respondent’s contract form used for the parties’ contract did not include the minimum elements of a contract provisions set forth in A.R.S. § 32-1158(B). 6. Although the Registrar’s Corrective Work Order mentions that the parties’ contract did not comply with the requirements of A.R.S. § 32- 1158, the written directive did not require any action by Respondent. Therefore, Respondent did not violate the provisions of A.R.S. § 32- 1154(A)(23) regarding that issue. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(23) as to the workmanship issue involving piping. The Registrar’s Corrective Work Order required Respondent to timely determine the cause of the prior leaks evidenced by the calcification and copper oxidation on the piping and to correct if necessary. Respondent could not comply with the written directive to investigate the evidence of prior leaking of the piping because Complainants unreasonably denied Respondent access to their property. 7. The evidence of record does not support a recommendation by the Administrative Law Judge that Respondent be required to pay restitution to Complainants for the cost of the Zeta Rod system and reverse osmosis system pursuant to A.R.S. § 32-1156.01. Respondent should be afforded an opportunity to address the leak issue set forth in the Corrective Work Order. Such work shall be performed by a bona fide employee of Respondent or a properly licensed subcontractor hired by Respondent. In order to accomplish that work, Complainants must provide Respondent with reasonable access to their property. If Complainants fail to provide reasonable access to accomplish that work, then Respondent may be excused from performing such work. RECOMMENDED ORDER Respondent’s License No. K-37.241836-D shall be suspended on the effective date of the Order entered in Case No. 2012-1633 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has become fully compliant with the requirements of A.R.S. § 32-1158 and has complied with Item 3 of the Corrective Work Order directing Respondent to determine the cause of the prior leaks on the piping and to correct by appropriate means. If Respondent provides the Registrar with written proof that Respondent has revised its contract form to become fully compliant with the requirements of A.R.S. § 32-1158 and has complied with the written directive to investigate the prior leaking of Complainants’ pipe and correct by appropriate means on or before the effective date of the Order entered in Case No. 2012-1633, and the Registrar approves such written proof of full compliance by Respondent, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. K-37.241836-D shall be suspended for a period of five (5) days followed immediately by a period of disciplinary probation for ninety (90) days. These alternative penalties shall commence on the effective date of the Registrar’s approval of proof of Respondent’s compliance with the Corrective Work Order or the effective date of the Order entered in Case No. 2012-1633, whichever is later. 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 4, 2012.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Agency Record, 1633_inspActionLetters4.rtf (footnote added).

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