ALJDEC decisions subject to certification as final

2017A-430-CHC-ROC · Registrar of Contractors · 2017-06-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John and Sylvia Ksobiech,

COMPLAINANT,

Kobe Construction Inc.,

DBA: Ideal Walls and Ceilings,

License No: 111343

RESPONDENT

No. 2017A-430-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 23, 2017

APPEARANCES: Complainants John and Sylvia Ksobiech appeared on their own behalf. Respondent Kobe Construction Inc. doing business as Ideal Walls and Ceilings was represented by Philip Overcash.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Kobe Construction Inc. doing business as Ideal Walls and Ceilings (Respondent) is the holder of License No. 111343 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 23, 2017, the Registrar received a Complaint against Respondent from John and Sylvia Ksobiech (Complainants) alleging, inter alia, that Respondent had installed a water line across their lot without their knowledge or permission.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz 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 March 13, 2017.

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

Permit required for water line project in project in 33” public easement right of way. When permit is pulled by the owner or owner’s agent and inspected, if the local jurisdiction determines that there are corrective issues during the inspection the Respondent will have to Correct by Appropriate Means.

Complaint Item 2: PART 2 SHARED WELL

Porter ran a waterline across our lot 2, to connect his home on lot 3. Did this without our permission or knowledge. SEE PART 2 A&B.

Respondent installed shared well on lot #1 and put a shared well agreement in place. Respondent ran water line in 33” public easement right of way that runs from lot #3 and down to lot #4. Respondent[] alleges he applied for permit explained location of water line and was granted. Upon further investigation with Pinal County Public Works it was discovered, that permit required for water line project in 33” public easement right of way was not applied for and or inspected.

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 did not make any effort to contact the Pinal County Department of Public Works prior to the deadline set forth in the directive to obtain a permit and/or have the water line inspected. After the deadline in the directive expired, Investigator Cruz was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Cruz testified that Respondent was required to obtain a permit in install a water line in the Pinal County right-of-way even though a utilities easement existed on the property. Investigator Cruz stated that there was a distinction between a building permit issued by Pinal County Community Development and a right-of-way permit issued by Pinal County Department of Public Works.

Investigator Steven Lawton, Senior Investigator, testified that because the water line was not permitted through the Pinal County Department of Public Works, there was no evidence it was inspected and there was no redline to show exactly where the line was. Investigator Lawton testified that without that, the Registrar could not determine if the water line was actually located in the right-of-way easement.

Sylvia Ksobiech testified that she was first shown a map with the water line running across her property, Lot 2, that was not within the right-of-way easement. Ms. Ksobiech stated that because she was not on the property when the work was done, she had “no idea where the water line was installed.”

Michael Porter, Respondent’s Owner and Qualifying Party, testified that he purchased Lot 1 and Lot 3 from Complainants, put a well on Lot 1, and ran a water line to a home he built on Lot 3. Mr. Porter stated he obtained five permits while completing this project—a building permit for Lot 1, a building permit for Lot 3, a well permit, a right-of-way permit for Lot 1, and a right-of-way permit for Lot 3. Mr. Porter testified that he did not believe he needed a permit for Lot 2. Mr. Porter acknowledged that the Pinal County Department of Public Works right-of-way permit identified the scope of work as “underground conduits for power to house & pump.” Exhibit 1. Mr. Porter stated that he failed to update his address with the Registrar, and therefore, he did not receive the written directive from the Registrar. Mr. Porter testified he only learned of the written directive at 4:30 p.m. on March 13, 2017, the deadline date, when Investigator Cruz contacted him to see if any corrective action had been taken. Mr. Porter stated he went to Pinal County the following day and emailed everything to Investigator Cruz.

It should be noted that the Pinal County Department of Public Works provides as follows:

This permit is for work in Pinal County right-of-way only. However, issuance of this permit does not confirm the existence of Pinal County right-of-way.

This document must be posted on the construction site in a conspicuous place. No work will be allowed to take place inside the right-of-way without a valid permit on site.

Exhibit 1.

Administrative notice is taken of Respondent’s prior License record on June 12, 2017. Such prior License record reflects that Respondent’s License No. 111343 was first issued on February 14, 1996, and is current. Such prior License record also reflects that there were no prior complaints 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 Respondent did not obtain a permit for Lot 2 from the Pinal County Department of Public Works regarding the installation of the water line in the right-of-way. While Respondent may not have believed he needed such a permit, Respondent obtained similar permits for Lot 1 and Lot 3, both of which provided that “[n]o work will be allowed to take place inside the right-of-way without a valid permit on site.” Therefore, Complainant established that Respondent departed from building codes in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent did not obtain the required permit prior to the installation of the water line across Lot 2. Therefore, Complainant established that Respondent did not complete the project 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).

The evidence established that Respondent did not make any attempts to obtain a permit from the Pinal County Department of Public Works for the water line installed in the right-of-way of Lot 2 following the directive being issued. 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. 288366 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(E).

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, June 12, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors