ALJDEC decisions subject to certification as final

2014A-4359-ROC · Registrar of Contractors · 2015-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 15, 2015 APPEARANCES: Trudy Hollingsworth on her own behalf; William A. Higdon for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On October 27, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on December 15, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Payson Professional Plumbing, LLC holds license number CR37.282175-D issued by ROC.[1] William A. Higdon is a member of the LLC and Payson Professional Plumbing’s qualifying party. 3. ROC’s website shows that Payson Professional Plumbing’s license was voluntarily cancelled as of September 12, 2014. Mr. Higdon did not agree that this was the correct date, but he did not provide documentation to show when the license was cancelled. 4. In August 2014, Complainant Trudy Hollingsworth hired Payson Professional Plumbing to install a whirlpool-type bathtub at her house. The parties disagree as to the scope of the job, with Mr. Higdon testifying that the job as quoted did not include carpentry or electric work. No contract was offered into evidence. 5. On October 24, 2014, Ms. Hollingsworth filed with ROC a Complaint against Payson Professional Plumbing. In her complainant, Ms. Hollingsworth alleged that: (1) the tub was broken and that it was not braced underneath; (2) walls and a brace were cut and proper bracing was not installed; (3) floor tile was chipped; (4) Payson Professional Plumbing caused a water leak that resulted in mold and other damage; (5) the backing was never installed; and (6) debris was loaded into her truck for her to haul off. 6. On November 19, 2014, ROC Investigator Tom Sandoval conducted a job-site inspection. Ms. Hollingsworth was present, but no representative of Payson Professional Plumbing appeared. Mr. Sandoval contacted other ROC personnel and was informed that ROC’s letter to Mr. Higdon regarding the inspection had been returned. 7. Mr. Sandoval found that the tub had two chips, but these could have been easily repaired. Mr. Sandoval also found that additional bracing was required and that the “surround” (or backing) had not been installed. Mr. Sandoval testified however that based on his interactions with the parties, this should be considered a case of abandonment, not poor workmanship. 8. Mr. Sandoval did not verify that the tub was not braced underneath or that Payson Professional Plumbing was responsible for the chipped floor tile or the water leak, and he could not make any determination related to the placement of debris in Ms. Hollingsworth’s truck. 9. With regard to the chipped floor tile, Mr. Sandoval testified that the tile was old, perhaps dating back to the 1970s. 10. With regard to the water leak, Mr. Sandoval’s opinion was that the leak was not caused by Payson Professional Plumbing, which he based on the fact that mold was present and that there had not been sufficient time for mold to develop. At a compliance inspection on March 17, 2015, Mr. Sandoval saw further evidence to demonstrate that Payson Professional Plumbing was not responsible for the leak. 11. On January 8, 2015, ROC issued a Directive showing that Payson Professional Plumbing was required to remedy by appropriate means the two chips in the tub, the bracing, and the surround. The Directive provided that the corrective work had to be completed by no later than January 16, 2015.[2] 12. On March 17, 2015, Mr. Sandoval conducted a compliance inspection. Mr. Sandoval did not inform Payson Professional Plumbing that the inspection was to take place because there was a court order prohibiting Mr. Higdon from going near the house. 13. Mr. Sandoval’s Compliance Jobsite Inspection Notes show that Ms. Hollingsworth had not made any payments to Payson Professional Plumbing and that she was not “out” any money. The Notes also show that Ms. Hollingsworth had obtained a new tub and hired another contractor to install it and to make the other repairs, even though Mr. Sandoval had informed Ms. Hollingsworth that the chips in the tub could have been repaired. 14. On July 13, 2015, ROC issued a Citation alleging that Payson Professional Plumbing may have violated Ariz. Rev. Stat. section 32-1154(A)(3) through a violation of Ariz. Admin. Code section R4-9-108, and Ariz. Rev. Stat. sections 32-1154(A)(6) and (A)(22). 15. The Citation shows that although a ROC “investigator confirmed that at least some of the charges relating to Payson Professional Plumbing LLC’s work appeared to be valid. Without an administrative hearing, however, the Registrar cannot determine whether the charges in Trudy Hollingsworth’s written complaint are fully supported by legally sufficient evidence and whether the relevant elements of the applicable statutory provisions and rules can be established against Payson Professional Plumbing LLC.” 16. Ms. Hollingsworth testified that she had paid another contractor to remove the tub and that the bottom of the tub was cracked. The evidence presented is not sufficient to show that Payson Professional Plumbing was responsible for that damage. 17. Mr. Higdon testified to the effect that he had been willing to make any necessary repairs and complete the job, but that he had not been paid, and that after the Directive was issued, Ms. Hollingsworth would not allow him access to complete the work. Mr. Higdon also testified to the effect that installing the bracing was not part of the scope of work and that he did not cause any leaks. CONCLUSIONS OF LAW 1. A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 3. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 4. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 5. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 6. Ariz. Rev. Stat section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

* * * * 3. Violation of any rule adopted by the registrar. * * * * 6. The doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * * 22. 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.

7. Ariz. Admin. Code section R4-9-108, Minimum Construction Standards provides: “A contractor shall perform all work in a professional manner.” 8. The preponderance of the evidence does not show that Payson Professional Plumbing failed to properly brace the underside of the tub, that it caused a water leak that resulted in mold and other damage, or that it improperly loaded debris into Ms. Hollingsworth’s truck. 9. Although the tub Payson Professional Plumbing installed had two chips, and Payson Professional Plumbing did not provide the required bracing or install the “surround” (or backing), based on the facts and circumstances of this matter, including Mr. Sandoval’s testimony, if these deficiencies represent a violation, it is one of abandonment, not workmanship.[3] 10. It has not been shown by a preponderance of the evidence that Payson Professional Plumbing violated Ariz. Rev. Stat section 32- 1154(A)(3) (Ariz. Admin. Code section R4-9-108). 11. It has not been shown by a preponderance of the evidence that Payson Professional Plumbing violated Ariz. Rev. Stat section 32- 1154(A)(6). 12. The preponderance of the evidence shows that Payson Professional Plumbing violated Ariz. Rev. Stat section 32-1154(A)(22). 13. There is evidence to show however that Payson Professional Plumbing made an attempt to comply with the Directive after the January 16, 2015 deadline, but Ms. Hollingsworth would not allow Mr. Higdon access to her house.[4] It also appears that Ms. Hollingsworth was unwilling to have the tub repaired, and would have only accepted a replacement. Considering these mitigating factors and that Ms. Hollingsworth has already had the tub replaced, it is recommended that this matter be dismissed. ORDER IT IS ORDERED that on the effective date of the final Order in this matter Complaint No. 2014-4359 is dismissed. 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 is forty days after the date of that certification. Done this day, December 29, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows Payson Professional Plumbing’s license number as 282175. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used. [2] The Directive does not meet the requirements of Ariz. Rev. Stat section 32-1154(A)(22) because it did not allow Payson Professional Plumbing fifteen days to comply. [3] Because the Citation does not allege abandonment, ascertaining whether Payson Professional Plumbing has a valid legal excuse or justification for failing to complete the project is beyond the scope of the hearing. See Ariz. Rev. Stat. § 41-1092.07(F)(6). [4] Moreover, as set out in the Findings of Fact, the Directive did not comply with the applicable statute.

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