ALJDEC decisions subject to certification as final

2015A-1933-ROC · Registrar of Contractors · 2015-11-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 2015 APPEARANCES: Complainant Weiyu Chen appeared on his own behalf. Paul La Chance, Sales Manager, appeared on behalf of Respondent Murray And Sons Construction LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. 274132 to Murray And Sons Construction LLC (“Respondent”). On or about September 12, 2014, Weiyu Chen (“Complainant”) entered into a contract with Respondent for a landscaping project including the installation of trees, irrigation, sod, granite, and pavers at Complainant’s home at 8408 East Columbus Avenue, Scottsdale, Arizona. The total contract price was $8,000.00 and Complainant paid a $4,000.00 deposit and a second payment of $4,000.00. Complainant stated he signed an addendum for $850.00 for lighting installation, Complainant has not paid the $850.00. On or about November 3, 2014, Complainant reported water leaking issues to Respondent. On or about March 28, 2015, Respondent went to Complainant’s home and repaired a leaking sprinkler head and a water pipe. This did not resolve all of Complainants issues with the project. On or about May 28, 2015, Complainant filed a complaint with the Registrar alleging poor work as a result of the project. Specifically, Complainant asserted that there was a leaking pipe and a 7-inch deep hole in the yard near the valve box. After the Registrar assigned the Complaint to its inspector, Jack Grimm, for investigation, he performed a jobsite inspection. The Directive from the Registrar issued on June 18, 2015, included the following: 1. Water leaking at irrigation valves. Center inlet and western most inlets are leaking in valve box. CORRECT BY APPROPRIATE MEANS.

2. Left a 7 inch deep hole in my backyard. Trench was opened up over supply line to the irrigation box and has not been backfilled. CORRECT BY APPROPRIATE MEANS.

Complainant reported that Respondent did not attempt to schedule a time to complete the corrective work after the Directive was issued. Mr. La Chance testified he did not remember if Respondent made any contact with Complainant after receiving the Directive. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). Inspector Grimm testified that at the time of the inspection, he observed the hole in the ground and water on the pipes in the valve box and concluded that the pipes were leaking. Inspector Grimm also testified that he performed a compliance inspection at which time he observed the pipes in the valve box were still leaking. Mr. La Chance testified that the moisture on the pipes was likely the result of condensation coming up from the ground and was not a leak in the line because every time the water came on, it would put enormous pressure on the line and water would obviously spray from the connection. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 23, 2015. Such prior License record reflects that seven revocations were entered against Respondent’s License No. 274132 on November 19, 2015. Such prior License record also reflects that there were one prior complaint that had been resolved/settled/withdrawn; 8 prior complaints that had resulted in discipline; and 5 open complaints against Respondent’s license. 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. The credible testimony established that the work by Respondent resulted in a leak in the pipes in the valve box. Therefore, Complainants established that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[1] 4. The undisputed credible testimony established that Respondent did not make any attempt to comply with the Corrective Work Order. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Murray And Sons Construction LLC’s License No. 274132 It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty. 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, November 24, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(22) 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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