ALJDEC decisions subject to certification as final

2014A-629-ROC · Registrar of Contractors · 2016-03-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 18, 2016, at 8:00 a.m. APPEARANCES: Diana L. Gignac (hereinafter “Complainant” or “Ms. Gignac”) was represented by her attorney, Michael Rogers, Esq. Affordable Water Heaters LLC (hereinafter “Respondent” or Affordable”) appeared through its qualifying party, Larry Patterson (hereinafter “Mr. Patterson”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License Nos. R37R.274039-R, R37R.238123-R, C- 37.274041-C and C-37.238122-C. License Nos. R37R.274039-R and C-37.274041- C are current as of March 2, 2016. License Nos. R37R.238123-R and C- 37.238122-C were voluntarily cancelled on July 17, 2011. This is a residential matter in which on or about November 14, 2013, Respondent performed plumbing work in Complainant’s residence located at 1321 W. Shellfish Drive, Gilbert, Arizona 85233 (hereinafter the “residence”). Respondent was retained by the Complainant to perform corrective work on plumbing that had been installed by an alternative plumbing contractor. Shortly after Respondent completed its construction work at Complainant’s residence, Complainant discovered that there were several deficiencies in the plumbing work that Respondent had performed at her residence. When Respondent failed to correct the problems with its plumbing work, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On February 19, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Secure the loose master tub spout. 2. Reinstall master tub hot valve trim so it covers the chipped tile surface and so it sits flush with the tile surface. 3. Reinstall thermal shower valve so it seats straight to the shower wall and so the handle turns back and forth properly. This includes securing the hot/cold plate so it doesn’t move.

Respondent declined to correct the thermo shower valve on the asserted basis that Respondent did not install the thermo shower valve. Complainant then requested the Registrar to issue a Citation against Respondent’s licenses. On August 17, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

The Invoice for Respondent’s construction work on Complainant’s residence was attached to the written Complaint.[3] The Invoice provides, in relevant part, as follows: Pull + reset tub Replace trim in Roman tub valve Repair shower thermo valve.

Testimony Ms. Gignac testified that the thermo shower valve did not work and that the thermo shower valve had not been corrected by Respondent. Ms. Cignac acknowledged that thermo shower valve had been installed by the prior plumbing contractor which she identified as Seabrook. The assigned Registrar Investigator, Theodore Gerald (hereinafter “Investigator Gerald”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Gerald testified that he performed a compliance inspection at Complainant’s residence on August 10, 2015. Investigator Gerald stated that Respondent had corrected Item No. 1 of the written Directive. Investigator Gerald said that Item No. 2 of the written Directive had been rescinded because the Respondent was not responsible for the chipped tile. Investigator Gerald initially said that the Respondent should not be held responsible for correcting the thermo shower valve because the thermo shower valve had been installed by a different plumbing contractor. After reviewing the invoice provided by the Respondent, Inspector Gerald said that the Respondent was responsible for correcting the thermo shower valve as set forth in the written Directive because the invoice indicates that the Respondent charged the Complainant for correcting the thermo shower valve. Investigator Gerald’s testimony is found to be credible. Paul Becklund (hereinafter “Mr. Becklund”) is a plumber that works for Affordable. Mr. Becklund stated that he performed the plumbing work at Complainant’s residence for the Respondent. Mr. Becklund said that he set the tub in Complainant’s residence. Mr. Becklund denied that he performed any work on the thermo shower valve. Mr. Becklund said that Affordable did not pick the shower valve out, that Affordable did not pay for the thermo shower valve and that Affordable did not install the thermo shower valve. Mr. Patterson testified that the Affordable did not touch the thermo shower valve and that Affordable should not be held responsible for plumbing work that it did not perform.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The voluntary cancellation of Respondent’s License Nos. R37R.238123-R and C-37.238122-C does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint.[4] 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. 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). Complainant established by a preponderance of the evidence that the thermo shower valve in her master bath did not work. Complainant established that Respondent charged the Complainant for repairing the thermo shower valve. Complainant established that the Respondent did not actually repair the thermo shower valve. Complainant established that Respondent failed to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License Nos. R37R.274039-R, R37R.238123-R, C-37.274041-C and C-37.238122-C of Respondent shall all be suspended until Respondent provides written proof acceptable to the Registrar that Respondent has properly corrected the thermo shower valve in Complainant’s residence. It is further recommended that if Respondent provides acceptable written proof that it has corrected the thermo shower valve in Complainant’s residence before the effective date of the Order in this matter that no suspension of Respondent’s licenses take place and that instead this matter shall be closed. It is further recommended that Respondent pay the sum of $50.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent 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 Respondent’s contractor’s licenses effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent 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 five days from the date of the certification. Done this day, March 3, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. 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.

[2] A.R.S. § 32-1154(A)(22) 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. [3] See Exhibit 3 (Complaint and attached Invoice). [4] A.R.S. § 32-1154(C).

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