ALJDEC decisions subject to certification as final

2015A-459-ROC · Registrar of Contractors · 2016-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 23, 2015 APPEARANCES: Melissa Giordano, Complainant; J.D. McCune, Respondent’s representative; Steve Klein, Registrar of Contractors Inspector; Emily Giordano, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint with the Registrar of Contractors, Complainant has established that Respondent violated A.R.S. § 32- 1154(A)(3), (16) and (22). Therefore, disciplinary action against Respondent’s license is appropriate. For the reasons set forth below, the Administrative Law Judge recommends that Respondent’s license be suspended for one day and that Complainant be allowed to file a Recovery Fund claim. FINDINGS OF FACT 1. Complainant contracted with Respondent for the installation of a combination water feature and gas fire pit. Respondent built the unit but when its problems were not fixed, Complainant filed a complaint with the Registrar of Contractors in February 2015. 2. On April 1, 2015, Registrar of Contractors Inspector Steve Klein conducted a job site inspection. He issued a Directive from the Registrar on April 10, 2015 based on his findings. The Directive provided, in relevant part, as follows: Dear Respondent:

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:

Complaint Item 1: Water feature fire pit was built without any way to drain resulted in submersion of gas pipe which caused it to rust and clog. On 12/10 they came to fix. They haphazardly drilled holes and pierced water pipe, then cut large hole in back of feature. The crew left and said SI) would be back the following day to fix, Have not heard from anyone despite multiple attempts to contact.

Investigator’s Observation: • Burner port exposed to rain or moisture shall be non- corrosive. • Where passing through an outside wall, the piping shall also be protected against corrosion by coating or wrapping with an inert material. • Over flow drain should be installed. • Masonry repair at rear of water feature • Out of scope contracting, gas

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 4/22/15.

You are advised that if your license is suspended for administrative reasons[1] or is inactive, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the administrative suspension of your license(s) has been lifted or your license(s) has been reactivated.

If your license 241426 is suspended for administrative reasons or is revoked, expired, or cancelled, you may not contract in any manner and may remedy the workmanship violations listed above only by paying a properly licensed contractor hired by Complainant to remedy your deficient workmanship or by reaching a financial settlement with Complainant.

You may not perform or hire other contractors to perform work that is outside the scope of your license If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

Please direct all questions regarding this Directive to the undersigned Investigator. 3. Because Respondent was found to have contracted outside the scope of its license, it was unable to perform some of the corrections, but Respondent did repair the masonry and install an overflow drain. 4. When the matter came to hearing, Inspector Klein and Complainant testified about the problems with the unit, stating that it had design problems and the new overflow drain was still not working properly because it would not drain off water before it reached the burner. Additionally, it was noted that the burner and all of the pipes under the unit need to be replaced with non-corrosive pipes and materials. Complainant testified that the masonry repair was cracked and had not been painted to match the unit and the electricity is not working properly.[2] 5. Respondent’s representative, J.D. McCune, agreed that the unit suffered from design flaws and wanted to know how to correct it. He stated that he was unaware that he was prohibited from subcontracting properly licensed contractors to complete those portions of the job. He said his license allows him to hook up the unit to an existing gas line[3] and that is what he did. But he also acknowledged that he installed a gas line, which was outside the scope of the license. 6. It was clear during the course of the hearing that Respondent was ready and willing to correct the work and that he had wanted to come to the hearing because he wanted to know for certain what he needed to do to fix the unit properly.[4] His impression that he would have another chance is not unreasonable because the Registrar was known for many years to give contractors another opportunity to correct their work after a hearing. It also appears that he did not understand that he could have paid a properly licensed contractor that Complainant hired in order to complete the corrective work. He said that without the design flaw, the burner would never have been submerged. 7. Because Mr. McCune was willing to correct his work and because he was unclear about his right to pay for Complainant’s hired gas and electrical contractors, the Administrative Law Judge recommends restraint in determining the appropriate disciplinary action, especially in light of Respondent’s license history, which shows that it is in good standing with only one complaint and some minor suspensions for administrative issues in the past. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (16) and (22) and A.A.C. R4-9-108. 2. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(16) provides grounds for suspension or revocation of a contractor’s license for “knowing contracting beyond the scope of the license or licenses of the licensee.” According to the Registrar of Contractors website, Respondent’s license is classified as CR21, which, according to A.A.C. R4-9-104(B) allows Respondent to perform various duties, including some installation of low voltage lighting. However, it also provides as follows:

This classification does not allow the licensee to install, contract for, or subcontract new electrical service panels, gas or plumbing lines, blasting, outdoor kitchens, gazebos, room additions, swimming pools, pool deck coatings, barbeques, concrete driveways, load bearing walls, or perimeter fencing. [Emphasis added.]

4. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for the following:

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. . . .

5. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. As noted above, Respondent’s license as of the time of this recommendation is in good standing with only one complaint against it. 6. In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3), (16) and (22) when it constructed the unit with a poor design, worked outside the scope of its license and failed to complete the corrective work. 7. Complainant wishes to go to the Recovery Fund, and therefore requested that Respondent’s license be revoked. However, because Respondent was honest about the flaws in his design and the uncompleted work and because he believed in good faith that he could determine what he needed to do at the hearing and then correct his work, a suspension appears to be more appropriate. This will not prevent Complainant from filing a Recovery Fund claim. Therefore, a suspension of three days is recommended. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license be suspended for three days.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, January 5, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F). [2] It is noted that the electrical work was not part of the complaint. Therefore, it is not part of this recommendation. However, nothing precludes Complainant from filing another complaint about the electrical work so long as it is timely filed. [3] Inspector Klein also stated that this was his understanding. [4] Hearing Record between 38:00 and 40:00.

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