ALJDEC decisions subject to certification as final

2012A-4009-ROC · Registrar of Contractors · 2013-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2013 APPEARANCES: Clarke Manlove appeared on his own behalf. De Miguel Enterprises LLC dba De Miguel Plumbing appeared through Julian de Miguel, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C37R.248863-R to De Miguel Enterprises LLC dba De Miguel Plumbing (“Respondent”). The Registrar received a Complaint against Respondent from Clarke Manlove (“Complainant”) alleging Respondent “punched [a] large hole in ceiling” and requesting that Respondent repair the toilet and unplug or replace the bathroom faucet following plumbing work done by Respondent at 2938 N 17th Drive, Phoenix, Arizona. After the Registrar assigned the Complaint to its inspector, Jeff Fleetham, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Fleetham issued a Corrective Work Order in which he concluded that: a. The hole in the ceiling of the north side entry / laundry / water heater room — Inspector Fleetham was unable to determine the cause at the time of inspection, so no action was required by Respondent. b. The hole in the living room ceiling at the corner of the wall and ceiling above and slightly east of the fireplace — Inspector Fleetham noted extensive moisture damage including peeling paint and calcification of plaster in the adjacent area. Inspector Fleetham was unable to determine the cause at the time of inspection, so no action was required by Respondent. c. Lavatory faucet not functioning as intended — Inspector Fleetham noted the faucet was corroded to a state that any attempts to remove any part would likely cause the complete failure of the fixture. Inspector Fleetham was unable to determine the cause at the time of inspection, so no action was required by Respondent. d. Toilet float mechanism not functioning as intended — Inspector Fleetham was unable to determine the cause at the time of inspection, so no action was required by Respondent. e. Broken lap siding at north side gable vent — Respondent agreed during the jobsite inspection that he would correct the siding by appropriate means. f. Broken tree branch left in the yard — Respondent indicated the limb was cut from the tree to facilitate ease of access for repairs. Respondent was instructed to remove the branch from the property. 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. Inspector Fleetham testified he did not perform a pre-hearing inspection because Respondent confirmed no corrective work was completed at the property. A hearing was held on January 24, 2013. Inspector Fleetham testified about the Registrar’s standards. Complainant testified on his own behalf. Respondent submitted one exhibit and presented the testimony of Julian de Miguel, its Qualifying Party. Hearing Evidence Complainant contracted with Respondent to repair a leaking pipe in his attic. In attempting to enter the attic to access the leaking pipe, Respondent removed a tree branch that was left on the property after the job was completed. Also, some siding around the attic access was damaged when people were going in and out of the access. Following the completion of the work, Complainant observed two holes in his ceiling. One hole was in the north side entry area and was fairly small in diameter. Complainant indicated he believed the damage to be from something being poked through the plaster ceiling. The second hole was in the living area and was larger in size. Complainant indicated he believed the damage to be from someone putting his or her foot through the ceiling. Complainant stated the hole was 14 3/8 inches away from the visible evidence of water damage on the ceiling and could not be attributed to that. Complainant also noticed the faucet in the bathroom was not working properly. Complainant indicated the hot water tap was not producing the same flow as it was before the repair. Complainant also alleged the toilet was not operating properly. Complainant was not exact in his description of the problem, but avowed the toilet had worked without any problems prior to the repair being completed. Complainant testified a worker had “batted” his hand around in the tank of the toilet and he believed that caused the toilet to stop operating properly. Complainant conferred with other contractors regarding the damage to his property. According to Complainant, the contractors each indicated the holes in the ceiling were not caused by water damage. Respondent offered to contact a drywall contractor for Complainant that could address Complainant’s issues. Respondent arranged for a drywall contractor to inspect the holes in the ceiling and prepare an estimate for repair. The contractor indicated the holes could be repaired for $300.00. Respondent informed Complainant the bathroom faucet could be replaced and the toilet repaired if Complainant contracted with Respondent to perform that work. On September 19, 2012, Respondent sent a certified letter to Complainant in an attempt to set up a time to complete the work required by the Corrective Work Order. Complainant did not claim the letter and it was returned to Respondent. Respondent made no further attempts to contact Complainant regarding the Corrective Work Order. 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 when Respondent repaired the leaking pipe, a tree branch was removed and left on the property and the siding was damaged. However, no credible evidence established Respondent was at fault for the other items in the Complaint. 4. Complainant established Respondent’s work repairing the leaking pipe was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] 5. While Respondent sent a certified letter to Complainant regarding the required corrective work to be completed, Respondent did not make any other attempts to contact Complainant. Without more, it cannot be said that Complainant denied Respondent access to complete the required corrective work. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(23).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent De Miguel Enterprises LLC dba De Miguel Plumbing’s License No. C37R.248863-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Clarke Manlove’s Complaint in Case No. 2012-4009. 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, February 13, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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