ALJDEC decisions subject to certification as final

2016A-395-ROC · Registrar of Contractors · 2016-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2016 APPEARANCES: Joshua Casey for Respondent; Russell Hermann for Complainant ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On May 3, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 10, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. Respondent Casey Plumbing, LLC holds license number 271534 issued by ROC. Joshua Casey is Casey Plumbing’s qualifying party. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation, ROC alleges that Casey Plumbing may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Casey Plumbing’s license.[2] 5. Complainant Advanced Development and Building Services, LLC (“Advanced Development”) entered an agreement with Casey Plumbing in which Casey Plumbing was to provide services at a home owned by Jack Senecal. These services included including installing a free-standing bath tub. The complaint showing that the work was completed as of August 14, 2015. 6. On February 2, 2016, Advanced Development filed a complaint with ROC alleging workmanship and other deficiencies on Casey Plumbing’s part. 7. In response to Advanced Development’s complaint, on March 10, 2016 ROC Investigator Steve Lawton conducted a job-site inspection. Mr. Casey was not present at the job-site inspection and testified that he had not received notice of that inspection. 8. Mr. Lawton testified that the tub “rocked” a little bit, and that there was a leak that appeared to be located at the drain flange. 9. On March 14, 2016, ROC issued to Casey Plumbing a Directive ordering Casey Plumbing to correct by appropriate means the rocking of the tub and the leaking. The Directive required Casey Plumbing to complete this work on or before March 28, 2016, which is less than fifteen days after it was issued. 10. Casey Plumbing did not conduct work ROC ordered it to complete. 11. On April 8, 2016, ROC issued to Casey Plumbing the Citation. 12. On April 25, 2016, ROC received from Casey Plumbing an answer to the Citation and Complaint. 13. In its Answer: a. Casey Plumbing disputed the allegation that its workmanship was deficient. The Answer shows that the contractor[3] had purchased the tub that Casey Plumbing was hired to install and there were no installation instructions. b. Casey Plumbing asserted that it had installed the tub using a bead of silicone as it was instructed to do by Advanced Development, rather than using cement, which is how Mr. Casey wanted to do the installation. c. Casey Plumbing also asserted that prior to the Citation being issued, he had been at the job-site with representatives from Advanced Development and the homeowner. When Mr. Casey asked the homeowner if the tub ever moved, the homeowner responded affirmatively and pushed the tub causing it to shift. Mr. Casey’s opinion is that this shifting was the cause of any leaking and that this was not a workmanship defect. 14. The Answer shows that Mr. Casey was willing to reset the tub, but Advanced Development was insisting that it be reset using only the silicone, whereas Mr. Casey believed that this would not be sufficient to prevent the problem from reoccurring. 15. At the hearing, Mr. Casey reiterated Casey Plumbing’s position that it had not committed any workmanship violations. Mr. Casey’s opinion was that considering the weight of the tub, setting it in silicone only would not be sufficient to keep it from moving. 16. Advanced Development’s qualifying party, Russell Hermann, testified that it had hired another plumbing contractor to repair the leak, which was done by applying putty around the drain/flange. There was no evidence adduced to show that the rocking had been addressed. 17. Mr. Hermann testified that the other plumber informed Advanced Development that there had been no putty on the drain/flange. 18. Mr. Casey testified that he had personally installed the tub and that rather than using putty, he had used silicone. Mr. Casey’s opinion was that the use of silicone was an acceptable practice and that it was a better method than using putty. 19. Prior to the hearing, Mr. Casey obtained the installation instructions and he testified that those instructions call for setting the tub in a silicone bead, with the use of supplemental caulking also being acceptable. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat. section 32-1154(A) provides that 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: ***** 3. Violation of any rule adopted by the registrar. ***** 22. 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. (Underscore added.)

9. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional manner.” 10. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32- 1154(A)(22). 11. The preponderance of the evidence does not establish that Casey Plumbing violated Ariz. Rev. Stat. section 32-1154(A)(3). 12. Although the evidence shows that the tub rocked, there was no benchmark or standard to which this rocking could be compared to determine whether it was within accepted tolerances. Moreover, in this instance, the undisputed evidence is that the homeowner pushed the tub with sufficient force to move it prior to Mr. Lawton’s inspection. See Ariz. Rev. Stat. § 32-1155(C)(2)(work subject to modification or abnormal use cannot form the basis of citation for workmanship violation). 13. As to the leakage, the cause of this leakage has not been proven. Although Advanced Development provided evidence that there was no putty on the drain, Casey Plumbing provided evidence that it had used silicone and that this was an acceptable alternative. In addition, the fact that the homeowner pushed the tub with sufficient force to move it, raises the possibility that abnormal use is the cause of the leak. See Ariz. Rev. Stat. § 32-1155(C)(2). 14. It has not been shown by a preponderance of the evidence that Casey Plumbing violated Ariz. Rev. Stat. section 32-1154(A)(22).

15. As an initial matter, the Directive does not comply with the statute because Casey Plumbing was not given a minimum of fifteen days to comply. 16. The evidence of record does not demonstrate that there were any workmanship violations that required correction. Even if there were workmanship violations established, Casey Plumbing raised a good faith belief that there were none. ROC itself could not determine whether a workmanship violation had occurred without conducting a hearing on the issue and it would not be reasonable to interpret the statute to require Casey Plumbing to comply with the Directive prior to ROC establishing that a workmanship violation had occurred. 17. Considering the facts and circumstances of this matter, the Citation should be dismissed. RECOMMENDED ORDER IT IS ORDERED that the Citation in Case No. 2016-395 is dismissed

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 is forty days after the date of that certification. Done this day, June 28, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation was issued or when the Complaint was issued or filed. There appears to be no dispute that the Citation was issued on April 8, 2016 or that the Complaint was filed on February 2, 2016. [2] The Citation shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] Presumably, Advanced Development.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826