ALJDEC decisions subject to certification as final

2013A-64-ROC · Registrar of Contractors · 2013-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2013, at 8:15 a.m. APPEARANCES: Brenda Nicely (hereinafter “Complainant” or “Ms. Nicely”) represented herself at the hearing. N & L Investment Corporation dba Benjamin Franklin Plumbing of Western Arizona (hereinafter “Benjamin” or “Respondent”) was represented by its general manager, Larry Dale Thornton. 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 Benjamin is the holder of License No. K-37.269519-D issued by the Registrar of Contractors. Ms. Nicely is the owner of a residence located at 535 Park Street, Kingman, Arizona (hereinafter “the residence”). Ms. Nicely and Ms. Nicely’s fiancé, Raymond Weston (now deceased), contacted Benjamin to perform an examination of the gas line system for the residence with the intention of having gas service restored to the residence. Benjamin performed a service call at the residence on or about October 29, 2012. Benjamin inspected the gas line and replaced a gas pipe to the stove in the residence. Benjamin then provided Ms. Nicely with an invoice in the sum of $474.43 for the service call. There was still a gas leak at the residence and on or about November 5, 2012, Benjamin returned and performed another service call and located another gas leak. Benjamin then provided Ms. Nicely with an invoice in the sum of $138.43. There was still a gas leak at the residence and on or about December 5, 2012, Benjamin performed a third service call at Ms. Nicely’s residence without charge. There was still a gas leak at the residence and on or about December 19, 2012, Benjamin performed a fourth service call at the residence. Benjamin examined the gas lines at the residence and installed gas isolation valves in the residence. Benjamin provided Ms. Nicely with an invoice in the sum of $332.87 for the service call. There was still a gas leak at the residence and the local gas company still would not install a gas meter for the residence until the all of the gas leak problems were fully resolved. Complainant was dissatisfied with Benjamin’s failure to resolve the gas leak problems at her residence and filed a formal Complaint against Benjamin with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Cliff Corlett (hereinafter “Inspector Corlett”), conducted an onsite inspection. Inspector Corlett issued a written Corrective Work Order on January 18, 2013, directing Benjamin either to provide Ms. Nicely with a competitive price to correct the entire gas system as needed or to refund all monies paid to Benjamin by Ms. Nicely. The Corrective Work Order provided, in pertinent part, as follows: The Complainant, Raymond Weston contacted Benjamin Franklin Plumbing (Respondent) with the intention of having gas service restored to his residence. The Respondent’s serviceman, Paul Seebeck made three service calls to the Complainant’s residence at a charge of $ 945.43. The Complainant still has no serviceable gas piping. After the onsite inspection this inspector contacted Uni Source Gas division and was informed that the meter at this residence was removed in [February] 2010 due to ground leaks of the gas [yard- line]. I then contacted the city of Kingman who confirmed that any new gas service or one that required extensive repairs would require an inspection and approval from the city before the gas company would place a meter and provide service. The Complainant has received No Value for the work provided to date by the Respondent. Option # 1. The Respondent should provide a completive price to R&R the gas piping system as needed to meet any applicable codes and inspections and then reduce that price by the amount already paid by the Complainant. Option # 2. The Respondent should refund all monies paid to date to Complainant.

Testimony of Cliff Corlett Inspector Corlett testified that Benjamin knew that the gas meter for the residence had been removed by the local gas company. Inspector Corlett stated that Benjamin knew, or should have known, that a permit and an onsite inspection would have to be performed by the local building authority before the gas company would install a new gas meter for the residence. Inspector Corlett testified that Benjamin failed to obtain a permit from the local building authority and no onsite inspections were performed by the local building authority. Inspector Corlett opined that Ms. Nicely received no benefit for the money that was paid to Benjamin. Inspector Corlett testified that he performed a pre-hearing inspection at the residence on October 11, 2013. Inspector Corlett stated that Benjamin had not complied with the terms of the Corrective Work Order. Inspector Corlett testified that Ms. Nicely had caused the entire gas line for the residence to be replaced by a different plumbing contractor. Inspector Corlett’s testimony is found to be credible. Testimony of Brenda Nicely Ms. Nicely testified that she informed Benjamin that the gas meter for the residence had been “pulled” by the local gas company before Benjamin performed any service work at the residence. Ms. Nicely stated that she was very frustrated by the experience because the water heater for the residence had been red tagged and she still did not have a gas meter for the residence. Testimony of Paul Russell Seebeck Paul Russell Seebeck (hereinafter “Mr. Seebeck”) testified that he is the qualifying party for Benjamin’s License No. K-37.269519-D. Mr. Seebeck stated that he was a journeyman plumber and that he performed the service calls for the residence. Mr. Seebeck acknowledged that he knew the gas meter for the residence had been “pulled” by the local gas company because of a gas leak. Mr. Seebeck testified that he repeatedly informed Raymond Weston (hereinafter “Mr. Weston”) that the entire gas line system for the residence should be removed and replaced. Mr. Seebeck testified that Mr. Weston refused to pay for the replacement of the gas line system for the residence. Mr. Seebeck stated that Mr. Weston chose to attempt to repair the gas system for the residence as cheaply as possible rather than replace the entire gas line system. Mr. Seebeck testified that he returned to the residence several times because new gas leaks were discovered. Mr. Seebeck testified that Mr. Weston should have replaced the entire gas line rather than attempt to repair it with repeated service calls. Mr. Seebeck stated that he provided Ms. Nicely with a bid to replace the entire gas line system for the sum of $3,000.00. Testimony of Larry Dale Thornton Benjamin’s general manager, Larry Dale Thornton (hereinafter “Mr. Thornton”) testified that Benjamin performed repeated service calls at the residence. Mr. Thornton stated that all of the construction work performed by Benjamin at the residence complied with all workmanship and industry standards. Mr. Thornton testified that service calls do not require a permit and that Benjamin should be paid for its service calls. Mr. Thornton acknowledged that Benjamin is a “high priced” company. Mr. Thornton testified that Benjamin charges for construction work with “straight forward pricing.” Mr. Thornton stated that Benjamin used the whole project type of pricing that cannot be broken down into parts for labor and materials. Mr. Thornton testified that Benjamin responded to the Corrective Work Order by offering to replace the entire gas line system for the residence for the sum of $3,000.00. Mr. Thornton acknowledged that Benjamin knew that it was unlikely that Ms. Nicely would accept Benjamin’s bid as it was considerably higher than bids from other contractors for the same work. Mr. Thornton acknowledged that Benjamin did not return any money to Ms. Nicely. Administrative notice is taken of Benjamin’s prior license record as reflected on the Registrar of Contractors’ public website on October 25, 2013. Such prior license record reflects that License No. K-37.269510-D of Benjamin is current. CONCLUSIONS OF LAW 1. 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. 2. 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. Benjamin performed repeated service calls at the residence for a total cost of $945.43 to restore gas service to Ms. Nicely’s residence. Benjamin knew that the gas meter for the residence had been removed by the gas company because of leaks in the gas line system. Benjamin did not obtain a permit for its work on the residence. Benjamin knew, or should have known, that the local building authority would require that any new gas service or any existing gas service that required extensive repairs would require a permit, inspection and approval by the local building authority before the gas company would install a new gas meter and provide gas service to the residence. Ms. Nicely received no value for the work provided to her by Benjamin. This Tribunal concludes that Benjamin violated the charged provisions of A.R.S. § 32-1154(A)(2),[1] and A.R.S. § 32-1154(A)(3),[2] namely, A.A.C. R4-9-108.[3] 4. Benjamin did not provide a competitive price to Ms. Nicely to correct the gas line system for the residence as needed to comply with applicable codes and inspections reduced by the amount of money already paid by Ms. Nicely to Benjamin. Benjamin did not return the money that had been paid by Ms. Nicely to Benjamin for the valueless work performed by Benjamin. This Tribunal concludes that Benjamin violated the charged provision of A.R.S. § 32-1154(A)(23).[4] 5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. K-37.269519-D of Benjamin shall be suspended until the Registrar of Contractors receives and accepts written proof that Benjamin has paid the sum of $945.43 to Ms. Nicely in certified funds as restitution to reimburse her for the sums that Ms. Nicely paid Benjamin for the valueless work that Benjamin performed at the residence. It is further recommended that if on or before the effective date of this Order, Benjamin fully accomplishes the above-described restitutionary action, then the above-provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Benjamin pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Benjamin 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 Benjamin’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Benjamin, 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, October 28, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 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. [2] 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. [3] 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.

[4] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, 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.

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