ALJDEC decisions subject to certification as final

2012A-2681-ROC · Registrar of Contractors · 2012-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2012 APPEARANCES: Complainant Frank Baratta appeared on his own behalf; Respondent Deer Valley Plumbing Contractors Inc. was represented by Benjamin M. Mitsuda, Snell & Wilmer L.L.P. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C37R.092467-R to Deer Valley Plumbing Contractors Inc. (“Respondent”). The Registrar received a Complaint against Respondent from Frank Baratta (“Complainant”) regarding plumbing repairs completed by Respondent at 1543 West Mulberry Drive, Phoenix, Arizona that subsequently leaked. After the Registrar assigned the Complaint to its inspector, Mark Alyea, for investigation, he performed a jobsite inspection. During the jobsite inspection, the water to the home was turned off to prevent further damage. Following the jobsite inspection, Inspector Alyea concluded that the leak was the responsibility of Respondent and issued a Corrective Work Order instructing Respondent “to reconnect the pex pipe in an appropriate manner, at the north east corner of the kitchen ceiling. This needs to be done to workmanship standards, so the connection will be a permanet [sic] installation not a temporary repair.” Subsequently, Inspector Alyea decided to perform a second jobsite inspection with the water to the home turned on to ensure the leak was the responsibility of Respondent. Upon reinspection, Inspector Alyea determined that the PEX pipe Respondent installed was connected above an old coupling and that the leak was from the old coupling and was not Respondent’s responsibility. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). 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 state agency, for an evidentiary hearing. A hearing was held on December 3, 2012. Inspector Alyea testified about the Registrar’s standards. Complainant submitted five exhibits, presented the testimony of Jim Dunn, and testified on his own behalf. Respondent submitted seven exhibits and presented the testimony of Joseph Kerlin, its Qualifying Party. Hearing Evidence In February 2011, Complainant had a leak in his kitchen ceiling. Complainant filed a claim with his insurance company. The insurance company then contracted with Respondent to repair the leak. Respondent repaired the leak by replacing approximately 38 feet of pipe in the home with PEX pipe. Respondent connected the PEX pipe to the existing pipe at the first viable connection point on either side of the leak. In the kitchen, that connection point was above an existing coupling. In August 2011, Complainant had a leak where the PEX pipe connected to the existing pipe at the end away from the leak at issue. That leak was caused by a different plumber who was working on other home repairs. In August 2011, Respondent recommended that Complainant completely replumb the home and indicated that it would not perform any further repair work due to the age and condition of the original pipes. In September 2011, Respondent provided Complainant with a bid to replumb the home for $2,480.00. Complainant indicated he was going to contact his insurance company to see if it would cover the cost. During the next several months, Respondent followed up with Complainant regarding the bid. Complainant did not respond. On May 5, 2012, the leak at the pre-existing coupling occurred. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. Undisputed credible testimony established that the leak at issue was not in any part of the pipe worked on by Respondent. 4. Complainant argued that Respondent should have “gone the extra five feet” to the water heater when it repaired the original leak. Complainant alleged that Respondent did not perform quality work when it connected the new PEX pipe to the existing pipe knowing the condition of the existing pipe. 5. Respondent argued that it repaired the leak it contracted to repair and the leak at issue was not caused by the work it completed. Respondent argued that it did not replace the pipe back to the water heater because that was not within the scope of the contract to repair the original leak. 6. Complainant did not establish that Respondent’s installation of the PEX pipe violated industry standards or was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108. 7. Complainant did not establish that Respondent failed to take appropriate corrective action to comply within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final Order in this matter, the Registrar dismiss Complainant Frank Baratta’s Complaint in Case No. 2012-2681 against Respondent Deer Valley Plumbing Contractors Inc’s License No. C37R.092467- R. 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, December 21, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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