ALJDEC decisions subject to certification as final

2013A-5766-ROC · Registrar of Contractors · 2014-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Seth T. Hargraves. Primus Electric LLC (hereinafter “Primus” or “Respondent”) appeared through its qualifying party/member, KenDaryl L. Primus (hereinafter “Mr. Primus”). 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 Background Primus is the holder of License No. L-11.272411-C issued by the Registrar.[1] License No. L-11.272411-C is a commercial contractor’s license.[2] On or about May 23, 2013 , the Registrar received a Complaint against Primus from David W. Higginbotham (hereinafter “Mr. Higginbotham”) alleging that Primus had failed to perform electrical work in a professional and workmanlike manner at his residence located at 4732 S. Griswold Street, Gilbert Arizona.[3] On or about July 3, 2013, the Registrar conducted a jobsite inspection at Mr. Higginbotham’s residence. The Registrar subsequently issued a Corrective Work Order on July 11, 2013, directing Primus to remedy its deficient workmanship on the construction project.[4] The July 11, 2013 Corrective Work Order required, in pertinent part, that within fifteen (15) calendar days, Primus was to have performed the following actions: This contractor is to determine the cause of the master bath light fixture not working on the existing light switches and correct by appropriate means. A building permit would have been required to perform the electrical work noted on the contract and therefore, this contractor is to secure the proper building permit from the local building authority and have all necessary inspection passed.

6. On or about July 26, 2013, Mr. Higginbotham requested that an official citation be issued against Primus’ contractor’s license because his complaint had not been resolved by Primus.[5] 7. On or about August 13, 2013, Mr. Higginbotham filed an addendum to his complaint.[6] Mr. Higginbotham attached photographs of the new items that he wanted to add to his open complaint against Primus.[7] 8. The Registrar conducted a second jobsite inspection at Mr. Higginbotham’s residence and issued a second Corrective Work Order on August 21, 2013.[8] The August 21, 2013 Corrective Work Order provided, in pertinent part, as follows: This Corrective Work Order is in regards to the addendum filed by Complainant and received in our office 08/13/2013. All work to be completed per any and all building code requirements.

1) The newly installed ceiling exhaust/heat fan in the master bath was not placed on a dedicated 20 amp circuit but wired to the 15 amp bath light circuit. Contractor to correct.

2) Complainant and I went into the attic where I took pictures and verified the following deficiencies: All to be corrected by Contractor. Pic 1- Bracket for recessed can light bent and not properly secured. Pic 2- Wires not properly connected to J-box and not properly secured. Pic 3- Wires to ceiling fan not secured and flex duct dented. Pic 4- The flex duct to the ceiling fan not secured to the fan and is damaged. Pic 5- Wires to J-box not properly secured and improperly taped. Also flex duct damaged at that area.

3) Contractor loosened and cracked the caulked seal around the master bath make-up countertop. Contractor to correct.

As previously mentioned in the original Corrective Work Order, this contractor MUST secure a permit from the local building authority and have all necessary inspections passed.

On or about September 10, 2013, Mr. Higginbotham filed a request that a formal Citation be issued against Primus for its failure to comply with the August 21, 2013 Corrective Work Order.[9] On July 10, 2013, the Registrar issued a warning letter to Primus regarding the provisions of A.R.S. § 32-1158.[10] On October 3, 2013, the Registrar issued a warning letter to Primus that it was operating beyond the scope of its Class L-11 commercial electrical license by performing electrical work at Mr. Higginbotham’s residence.[11] Testimony of Registrar Complaint Investigator Theodore W. Gerold Registrar Complaint Investigator Theodore W. Gerold (hereinafter “Investigator Gerold”) testified that he has been an Inspector/Investigator for the Registrar for more than thirteen (13) years. Investigator Gerold stated that the Registrar received correspondence from Mr. Higginbotham on or about July 26, 2013, indicating that Primus had failed to comply with the July 11, 2013 Corrective Work Order.[12] Investigator Gerold testified that the July 11, 2013 Corrective Work Order had now been partially complied with. Investigator Gerold stated that the corrective work had not been performed within the time period required by the Corrective Work Order and that Primus had still not obtained a required construction permit from the local building authority. Investigator Gerold testified that the Registrar received correspondence from Mr. Higginbotham on or about September 10, 2013, indicating that Primus had failed to comply with the August 21, 2013 Corrective Work Order.[13] Investigator Gerold testified that the exhaust/heat fan in the master bath was not placed on a dedicated 20 amp circuit. Investigator Gerold stated that wires to the J-box were not property connected and secured. Investigator Gerold testified that the wires to the ceiling fan were not properly secured. Investigator Gerold stated that Primus damaged several areas of the flex duct and the caulked seal on the master bath make-up countertop while it was performing its electrical work. Investigator Gerold testified that the items set forth in the August 21, 2013 Corrective Work Order had not been corrected. Investigator Gerold opined that Primus failed to comply with the terms of the two Corrective Work Orders. Investigator Gerold stated that Primus failed to perform its electrical work in a professional and workmanlike manner. Investigator Gerold testified that the invoice prepared by Primus and utilized as the parties’ construction agreement did not contain the minimum elements of a contract required by A.R.S. § 32-1158.[14] Investigator Gerold stated that the invoice prepared by Primus and utilized as the parties’ construction agreement did not contain an estimated completion date, did not inform Mr. Higginbotham that he had a right to file a complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A), did not contain the Registrar’s telephone number and website address, and did not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32-1155(A). Investigator Gerold testified that the invoice prepared by Primus and utilized as the parties’ construction agreement did not contain Primus’ contractor’s license number preceded by the acronym “ROC” as required by A.R.S. § 32-1124(B).[15] Investigator Gerold testified that Primus was not licensed to perform residential electrical work. Investigator Gerold stated that Primus was prohibited from performing residential electrical work under its commercial electrical contractor’s license. Investigator Gerold opined that Primus knowingly contracted beyond the scope of its License No. L-11.272411-C. Investigator Gerold’s testimony is found to be credible. Testimony of David W. Higginbotham Mr. Higginbotham testified that he is the owner of the residence located at 4732 S. Griswold, Gilbert Arizona. Mr. Higginbotham stated that on or about February 14, 2013, he entered into a contract with Primus for the performance of several electrical projects at his residence. Mr. Higginbotham testified that the electrical projects included the installation of a hall sconce light, moving cables and telephone outlets, replacing several two gang outlets with four gang outlets, installing several recessed light fixtures, adding an additional door chime, relocating wall switches, and installing a new heater/exhaust fan in the master bathroom. Mr. Higginbotham testified that he filed his first complaint with the Registrar because he was unable to contact Primus. Mr. Higginbotham stated that Primus addressed the master bath light fixture that was listed on the July 11, 2013 Corrective Work Order. Mr. Higginbotham testified that the corrective work was not done within the time period set forth in the Corrective Work Order and that Primus had failed to obtain a building permit from the local building authority. Mr. Higginbotham testified that he retained a properly licensed residential electrical contractor to inspect the electrical work performed by Primus. Mr. Higginbotham stated that the residential electrical contractor observed that the new heater/exhaust fan was not properly braced or vented and that Primus had improperly tapped into an existing 20 amp circuit rather than providing a required dedicated 20 amp circuit. Mr. Higginbotham testified that one of the junction boxes had exposed wire and a missed connection. Mr. Higginbotham stated that Primus had damaged a recessed can light and the duct of an existing exhaust fan. Mr. Higginbotham testified that he filed the addendum to his complaint based upon the results of the inspection performed by the residential electrical contractor. Mr. Higginbotham stated that the August 21, 2013 Corrective Work Order was issued as a result of the addendum to his complaint. Mr. Higginbotham testified that Primus did not perform any of the corrective work directed in the August 21, 2013 Corrective Work Order. Mr. Higginbotham stated that Primus did not return to his residence to perform any of the corrective work directed in the August 21, 2013 Corrective Work Order. Mr. Higginbotham testified that the residential electrical contractor had provided him with a bid for needed corrective work on his residence. Mr. Higginbotham stated that it would cost $425.00 for the proper correction of the heater/exhaust fan and that the rest of the corrective work would be performed on a time and material basis. Mr. Higginbotham’s testimony is found to be credible. Testimony of KenDaryl L. Primus Mr. Primus testified that Primus completed the corrective action set forth in the July 11, 2013 Corrective Work Order. Mr. Primus stated that Mr. Higginbotham filed a complaint with the Registrar of Contractors before Primus was notified that there was a problem with its electrical work. Mr. Primus acknowledged that Primus did not have a residential electrical contractor’s license and that Primus did not obtain required construction permits from the local building authority. Mr. Primus testified that there was no additional testing to obtain a residential electrical contractor’s license and that it was simply a matter of paying an additional license fee. Mr. Primus asserted that Primus was willing and capable of performing the directed corrective work at Complainant’s residence. Mr. Primus acknowledged that he had made some mistakes on the construction project. Mr. Primus testified that he was an experienced electrician but a new electrical contractor. Mr. Primus stated that mistakes had been made because of his inexperience. Administrative notice is taken of Primus’ prior license record for License No. L-11.272411-C reflected on the Registrar’s public website on March 25, 2014. Such prior license record reflects that License No. L-11.272411-C is current. License No. L-11.272411-C was suspended for lack of bond from March 25, 2013, through May 16, 2013. CONCLUSIONS OF LAW 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.[16] 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). Primus performed electrical work without obtaining required construction permits from the local building authority. This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32-1154(A)(2).[17] Primus failed to place the new exhaust/heat fan in the master bath on a dedicated 20 amp circuit. Primus failed to properly connect and secure the electrical wires to the J-box. Primus failed to properly secure the electrical wires to the ceiling fan. Primus damaged several areas of the flex duct and the caulked seal on the master bath make-up countertop while it was performing its electrical work. This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32-1154(A)(3),[18] namely, A.A.C. R4-9-108.[19] The invoice prepared by Primus and utilized as the parties’ construction agreement did not contain Primus’ contractor’s license number preceded by the acronym “ROC” as required by A.R.S. § 32-1124(B). This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B). [20] The invoice prepared by Primus and utilized as the parties’ construction agreement did not contain an estimated completion date, did not inform Mr. Higginbotham that he had a right to file a complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A), did not contain the Registrar’s telephone number and website address, and did not state that complaints must be made within the applicable time period as set forth in A.R.S. § 32- 1155(A). This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158(B).[21] Primus’ License No. L-11.272411-C is a commercial contractor’s license. Mr. Primus acknowledged that he knew that Primus was not licensed to perform residential electrical work. Primus performed residential electrical work at Complainant’s residence. The residential electrical work performed by Primus failed to comply with applicable workmanship and industry standards. This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32-1154(A)(17).[22] Two separate Corrective Work Orders were issued in this matter. Primus failed to obtain a required building permit as directed in the July 11, 2013 Corrective Work Order and failed to respond to the August 21, 2013 Corrective Work Order. This Tribunal concludes that Primus violated the charged provision of A.R.S. § 32-1154(A)(23).[23] RECOMMENDed order In view of the foregoing, it is recommended that License No. L- 11.272411-C of Primus shall be suspended for a period of five (5) days and that the suspension shall continue until the Registrar receives and accepts written proof that Primus’ contracts, and all other business forms and advertisements are in full compliance with the provisions of A.R.S. § 32- 1124(B) and A.R.S. § 32-1158(B). It is further recommended that License No. L-11.272411-C of Primus shall be placed on probation for a period of one hundred and eighty (180) days. It is further recommended, in addition to the above-provided penalties, if any, that Primus pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Primus to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Primus’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Primus, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, April 1, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. 1 (Primus’ License Application). [2] See Appendix D (A.A.C. R4-9-102). [3] See Exhibit No. 2 (Complaint with attachments). [4] See Exhibit No. 5 (7/11/13 Corrective Work Order). [5] See Exhibit No. 6 (7/26/13 Correspondence). [6] See Exhibit No. 8 (Copies of photographs of electrical work performed at Complainant’s residence). [7] See Exhibit No. 9 (8/21/13 Corrective Work Order). [8] See Exhibit No. 10 (9/10/13 Correspondence requesting formal citation). [9] See Exhibit No. 10 (9/10/13 Correspondence from Complainant). [10] See Exhibit No. 4 (7/10/13 Warning letter). [11] See Exhibit No. 11 (10/3/13 Warning letter). [12] See Exhibit No. 6 (7/26/13 Correspondence). [13] See Exhibit No. 10 (9/10/13 Correspondence). [14] See Exhibit No. 8 (Notice of Minimum Elements of a Contract with attached invoices). [15] See Exhibit No. 2 (2/14/13 Invoice). [16] A.A.C. R2-19-119 provides as follows: A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the evidence. B. Burden of proof. Unless otherwise provided by law: 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense; and 3. The proponent of a motion shall establish the grounds to support the motion.

[17] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

[18] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [19] A.A.C. R4-9-108 provides, in pertinent part, 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.

[20] A.R.S. § 32-1154(A)(13) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1124(B) provides, in pertinent part, as follows:

Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[21] A.R.S. § 32-1158 provides, in pertinent part, as follows:

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.

[22] A.R.S. § 32-1154(A)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee. [23] A.R.S. § 32-1154(A)(23) provides as follows:

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.

-----------------------

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