ALJDEC decisions subject to certification as final

2015A-2098-ROC · Registrar of Contractors · 2016-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2016, at 8:00 a.m. APPEARANCES: Lorraine Anne Celotti (hereinafter “Complainant” or “Ms. Celotti”) was represented by her attorney, Janice Celotti, Esq. Estrella Valley Landscapes LLC (hereinafter “Respondent”) failed to appear.[1] ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(2), 32-1154(A)(3), 32-1154(A)(11), 32-1154(A)(12), namely a violation of A.R.S. § A.R.S. 32-1124(B), 32- 1154(A) (12), namely a violation of A.R.S. § 32-1158(B), 32-1154(A)(16), 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 Respondent is the holder of License No. CR21.275341-D (landscaping and irrigation systems) issued by the Registrar. Respondent’s License was current on May 16, 2016. This is a residential matter in which on or about February 27, 2015, Complainant contracted with Respondent for the performance of construction work, including electrical work, plumbing work, and the construction of a Ramada for the sum of $15,000.00 at Complainant’s residence located at 17896 W. Desert Wind Drive, Goodyear, Arizona, 85338 (hereinafter the “residence”). Respondent represented that it had completed the construction project and Complainant observed a ceiling fan and light hanging from the ceiling of the Ramada by an electrical wire. Complainant contacted the Registrar and discovered that Respondent was not licensed to perform electrical or plumbing work. On May 12, 2015, 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 August 25, 2015, a written Directive was issued by the Registrar. The August 25, 2015 written Directive provides, 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. Permit required by local jurisdiction which is the City of Goodyear. Any owner or authorized agent who intends to construct shall first make application to the building official and obtain required permit.

On September 14, 2015, a second written Directive was issued by the Registrar. The September 14, 2015 written Directive provides, 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. Permit required by local jurisdiction which is the City of Goodyear for all electrical and plumbing. Any owner or authorized agent who intends to construct shall first make application to the building official and obtain required permit. All work to be corrected by appropriately licensed contractors. 2. Planter has mortar wash instead of stucco. 3. Landscaping irrigation system leaks. 4. Broken irrigation heads. 5. Spaulding on the side of concrete sidewalks innumerous areas. . Respondent failed to comply with the two written Directives. After Respondent failed to comply with the Registrar’s written Directives, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained the following charges: Charge 1: An alleged violation of A.R.S. § 32-1154(A)(2).[2] Charge 2: An alleged 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).[3] Charge 3: An alleged violation of A.R.S. § 32-1154(A)(11).[4] Charge 4: An alleged violation of A.R.S. § 32-1154(A)(12),[5] specifically A.R.S. § 32-1124(B).[6] Charge 5: An alleged violation of A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158(B).[7] Charge 6: An alleged violation of A.R.S. § 32-1154(A)(16).[8]

Charge 7: A violation of A.R.S. § 32-1154(A)(22).[9]

Anthony K. Therrien (hereinafter “Mr. Therrien”) testified that he had been a licensed electrician in the State of Arizona since 1997.[10] Mr. Therrien stated that he observed the fan in the Ramada hanging from the ceiling by its electrical wires. Mr. Therrien said that the fan had not been attached to the ceiling in a workmanlike manner. Mr. Therrien said that the improper installation of the fan created a health and safety danger. Mr. Therrien said that there should have been a permit pulled for the installation of the ceiling fan. Mr. Therrien said that no permit had been pulled. Mr. Therrien opined that Respondent’s workmanship failed to comply with applicable workmanship standards. Mr. Therrien’s testimony is found to be credible. The assigned Registrar Investigator, Steven Lawton (hereinafter “Investigator Lawton”), testified that he had performed several onsite inspections at Complainant’s residence and that he had prepared the written Directives. Investigator Lawton stated that a construction permit was required for this construction project. Investigator Lawton said that no construction permit had been pulled for the construction project. Investigator Lawton testified that he performed a compliance inspection at Complainant’s residence on December 7, 2015. Investigator Lawton stated that Respondent had been working out-of-scope of Respondent’s license and without a required construction permit. Investigator Lawton said that no corrective work had been performed by Respondent on the construction project. Investigator Lawton said that no prehearing inspection had been performed because Respondent had not performed any corrective action at Complainant’s residence. Investigator Lawton opined that Respondent did not comply with the Registrar’s Directives. Investigator Lawton’s testimony is found to be credible. Ms. Celotti testified that she was constantly having to repair work that the Respondent had performed at her residence. Ms. Celotti stated that the concrete work performed by the Respondent was so poor that it required removal and replacement. Ms. Celotti said that she has experienced repeated flooding at her residence as a result of the landscaping work performed by Respondent. Ms. Celotti described the electrical and plumbing work that Respondent performed at her residence as being dangerous and unworkmanlike. Ms. Celotti said that Respondent created unsafe conditions at her residence. Ms. Celotti’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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). Mr. Therrien credibly testified that he observed the fan in the Ramada hanging from the ceiling by its electrical wires. Mr. Therrien said that the fan had not been attached to the ceiling in a workmanlike manner. Mr. Therrien said that the improper installation of the fan created a health and safety danger. Mr. Therrien said that there should have been a permit pulled for the installation of the ceiling fan and that no permit had been pulled. Investigator Lawton stated that Respondent had been working out-of- scope of Respondent’s license and without a required construction permit. Investigator Lawton said that no corrective work had been performed by Respondent on the construction project in response to the two written Directives issued by the Registrar. Complainant established by a preponderance of the evidence that Respondent performed out-of-scope work without a required construction permit and that Respondent’s construction work failed to comply with applicable workmanship standards. Complainant established that Respondent failed to comply with the Registrar’s written Directive. The evidence of record established that the written construction document provided by Respondent failed to comply with the provisions of A.R.S. §§ 32-1124(B) and 32-1158(B). This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(2), 32-1154(A)(3), 32-1154(A)(11), 32-1154(A)(12), namely a violation of A.R.S. § A.R.S. 32-1124(B), 32-1154(A) (12), namely a violation of A.R.S. § 32- 1158(B), 32-1154(A)(16), and 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. CR21.275341-D of Respondent be revoked. It is further recommended that Respondent pay the sum of $500.00 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, May 17, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] If the Respondent licensee is a limited liability company (LLC), it may be represented at an ROC disciplinary hearing by a member, manager, full- time officer or employee (including the qualifying party). The member, manager, full-time officer or employee must be specifically authorized, the representation must be a secondary or incidental duty, and the member, manager, full-time officer or employee must not receive additional compensation from the limited liability company other than reimbursement for costs. Ray Ramirez was present for the hearing. Ray Ramirez is the Respondent’s qualifying party’s husband. Ray Ramirez is not a member of the LLC and he did not present proof that he was a full time officer or employee with specific authorization to represent the Respondent at the hearing in this matter. [2] A.R.S. § 32-1154(A)(2) provides, in relevant part, as follows:

A. 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: . . . . 2. 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. [3] 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.

[4] A.R.S. § 32-1154(A)(11) provides, in relevant part, as follows:

Failure of a contractor to comply with any safety or labor laws or codes of the federal government, state or political subdivisions of the state.

[5]A.R.S. § 32-1154(A)(12) provides, in relevant part, as follows: Failure in any material respect to comply with this chapter.

[6] A.R.S. § 32-1124(B) provides, in relevant 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 on 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 12, 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.

[7] A.R.S. § 32-1158(B) provides, in relevant part, as follows:

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.

[8] A.R.S. § 32-1154(A)(16) provides, in relevant part, as follows:

Knowingly contracting beyond the scope of the license or licenses of the licensee.

[9] A.R.S. § 32-1154(A)(22) provides, in relevant part, 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. [10] ROC License No. 260166.

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