ALJDEC decisions subject to certification as final

2016A-1102-ROC · Registrar of Contractors · 2016-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jameson Van Houten

COMPLAINANT,

v.

Joseph Henry Pestel Jr dba,

Dragon Electric,

License No: 151687

RESPONDENT.

No. 2016A-1102-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2016

APPEARANCES: Complainant Jameson Van Houten appeared on his own behalf. Joseph Henry Pestel Jr. appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Joseph Henry Pestel Jr. doing business as Dragon Electric (Respondent) is the holder of License No. 151687 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 18, 2013, Jameson Van Houten (Complainant) entered into a contract with Respondent to perform certain electrical work at his home. The contract totaled $50,400.00.

During the project, Respondent failed to complete certain aspects of the project. After several attempts to resolve the issue failed, Complainant filed a complaint with the Registrar.

On or about April 4, 2016, the Registrar received a Complaint against Respondent from Complainant alleging the electrical work was not performed in accordance with the contract.

The Registrar assigned the complaint to Investigator Matt Gunstra. After a jobsite inspection, Investigator Gunstra issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). 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 May 19, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Switch in great room for patio lights is not a dimmer switch as called for on the plans

Master bedroom does not have two switches to control ceiling fan as shown on plans

Entryway fan and great room switches are reversed from what is shown on plans

Light control switches in upstairs hall are reversed from what is shown on plans

Mud room under cabinet light is not controlled by a dimmer switch as called for on the plans

Upstairs hallway recessed light by window is not directional as called for on the plans. Respondent stated he would change this at the inspection.

NOTE: Respondent stated he would replace the recessed light with a directional light fixture at the bottom of the stairway. Respondent stated he would reverse the switches at the great room/entry.

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

Following the issuance of the written directive, Respondent completed some of the corrective work. Respondent notified Investigator Gunstra that he was awaiting further information from Complainant and/or was looking for equipment to complete the required work and requested an extension of the deadline. Complainant agreed to extend the deadline. On or about June 28, 2016, Investigator Gunstra determined that Respondent had not followed up with Complainant about the remaining work and that an additional extension of the deadline was not warranted. Investigator Gunstra then forwarded the complaint to the legal department.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(22).

At hearing, Investigator Gunstra testified that none of the items identified in the directive were egregious or constituted a workmanship issue, but were deviations from the plans for the project. Investigator Gunstra stated that as of the time of the hearing, the first two items in the directive had not been completed in accordance with the plans.

Complainant testified that the two items remaining to be corrected were the two switches for the ceiling fan in the master bedroom and four-way dimmer switches for the patio lighting. Complainant indicated that Respondent had requested Complainant find out from the architect and/or engineer information about parts that would allow them him to complete the work per plans. Complainant also testified that he had provided Respondent with ways to complete the project, but did not provide specific part numbers.

Respondent did not dispute that the two items had not been completed per plans. Respondent testified that he was unable to complete the two items because he could not identify the parts necessary to do the work as Complainant wished. Specifically, Respondent asserted that the ceiling fan came with a remote and that it was not possible to install a second switch to operate the fan in the manner called for in the plans and that he had not found the parts necessary to complete a four-way dimmer switch for the patio lighting.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 26, 2016. Such prior License record reflects that Respondent’s License 151687 was issued on January 20, 2000 and is current with one open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that the plans for the project required two switches for the master bedroom and a four-way dimmer switch for the patio lighting and that Respondent did not complete those items. Therefore, Complainant established Respondent departed from the plans for the project in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent did not install the two switches in the master bedroom or the four-way dimmer switch for the patio lighting as set forth in the written directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 151687 for a period of one day.

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, October 26, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors