ALJDEC decisions subject to certification as final

2012A-2821-ROC · Registrar of Contractors · 2013-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Managing Member Adam Beech.

WITNESSES: Jeff Fleetham, ROC Inspector Carlton Howard Michael Coulson, Technician for Respondent Adam Beech

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship with regard to installation of a pool heater unit at Complainant’s house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record, along with an Exhibit packet prepared by Complainant. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending corrective work. FINDINGS OF FACT 1. Respondent is the holder of License No: B-6.269405-R, a general residential swimming pool contracting license issued by the Registrar. Austin Lane Coulson is the Qualifying Party on the license. 2. Complainant testified that he has held contracting licenses, both commercial and residential, from 1975 through 1990. He described his experience as involving heating, cooling, boilers, and gas systems. 3. Respondent was hired by a home warranty company to install a pool heater unit at Complainant’s residence in February 2012. Complainant was not happy with the workmanship and filed a complaint with the ROC on May 30, 2012. An on-site inspection was performed by ROC Inspector Phil Coscia and on July 31, 2012, a Corrective Work Order (“CWO”) was issued. 4. The CWO addressed 21 complaint items and ordered corrective work as to three of the items: 1) the local building inspector (City of Phoenix) had prescribed corrections in order to be in compliance with building codes and Respondent was directed by the CWO to perform repairs and make sure all items passed inspection;[1] 2) Respondent was ordered to comply with a jobsite agreement to install a rain gutter over the unit, in compliance with the local building inspector’s direction; and 3) Respondent was ordered to complete the project in compliance with all codes and manufacturer’s installation instructions. 5. One of the items from the city inspection stated that Respondent was to “move unit from roof or use gutter to direct rain water.” This allowed for two options for compliance. Complainant did not want the rain gutter option and advocated for moving the unit away from the roof edge instead. Respondent wanted to comply by installing a rain gutter. The parties reached an impasse and Complainant did not want any work done until that issue was resolved. Therefore, Respondent did not perform corrective work. 6. This tribunal finds that the city inspector allowed two ways to comply with the roof edge/rain issue. Neither this tribunal nor the ROC has authority to change that or order something different. If Complainant has a dispute with the city, he must address that with the city. Respondent is required by the ROC only to do whatever the local building authority requires, which at this time is either option. 7. During the hearing, Complainant presented two specific portions of the manufacturer’s installation instructions that he alleged had been violated by Respondent’s installation. First, Complainant noted that a “high wind stack” was needed. Respondent agreed at the hearing to install that item. Second, Complainant noted that there are minimum clearance standards from combustible construction materials. He submitted photographs of the area in question—the water side of the unit—but the photographs do not clearly show the distances. It is possible that the minimum clearances are not present, but it has not been proven. Respondent should inspect that aspect of the installation and make changes if necessary to meet the manufacturer’s requirements for minimum clearances.[2] 8. The evidence presented shows that the building permit for this project expired on September 5, 2012, due to inactivity. A new permit will have to be obtained to complete the job and the parties dispute who is financially responsible for the new permit. Due to the impasse noted above, no work took place for many months because Complainant rejected the rain gutter option. However, the building inspection notes clearly allow the rain gutter option as a means of compliance with building codes. Therefore, this tribunal finds that Complainant bears the responsibility for the delay caused by the impasse and that Respondent is not responsible for the financial cost of a new permit. 9. None of the other testimony and evidence presented by Complainant is persuasive or of sufficient weight to override the CWO. 10. The evidence shows that the corrective work needed at the jobsite is as follows: 1) comply with the local building authority, including necessary permits (any fee is the responsibility of Complainant) and inspections; 2) install the high wind stack as per the agreement at hearing; 3) inspect the unit and comply with the manufacturer’s installation instructions as to minimum clearances; and 4) complete the installation. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(2) (requiring compliance with plans, specifications, and building codes), A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent has not met building codes or workmanship standards. The evidence does not show that Respondent failed to comply with the CWO through its own fault. Complainant did not allow work due to the impasse concerning the rain gutter. 3. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on January 3, 2013. That prior record shows that Respondent has held the license since November 2010 and has not had any disciplinary actions. 4. The appropriate sanction in this matter is to require Respondent to perform the corrective work as described above in Finding of Fact 10. If Respondent does not do so in a timely manner, the license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that License No: B-6.269405-R, held by Pool Agency LLC be suspended beginning the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has made the corrections noted in Finding of Fact 10 above. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and Case No. 2012-2821 shall be closed.

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, January 3, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] This is found in both the introductory portion of the Inspector’s order and in Item 21. [2] The minimum requirement for the water side is twelve inches. There is a recommended clearance of twenty-four inches, but that distance is not mandatory. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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