ALJDEC decisions subject to certification as final

2017A-5151-CHC-ROC · Registrar of Contractors · 2018-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

City of Tucson Code Enforcement,

COMPLAINANT,

v.

Energy Source Electric Inc ,

License No: 190817, 190818

RESPONDENT.

No. 2017A-5151-CHC-ROC [ROOT]

2017A-5152-CHC-ROC

2017A-5153-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 1, 2081, at 8:30 a.m.

APPEARANCES (via Telephonic [Tucson): Rick Hollander (“Inspector Hollander” for City of Tucson Code Enforcement “Complainant”); Angel Villalba (“Mr. Villalba” representative for Energy Source Electric Inc., “Respondent”); Lucia Sandquist (“Ms. Sandquist” witness for Respondent); and Gregory Johndrow (“Investigator Johndrow” witness for the Arizona Registrar of Contractors “Registrar” or “ROC”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

This matter is heard as a consolidated case involving Case Nos. 2017A-5151-CHC-ROC; 2017A-5152-CHC-ROC; and 2017A-5153-CHC-ROC. Case No. 2017A-5151-CHC- ROC is the root case. This hearing is to determine whether Respondent has violated the following statutory provision, (1) Arizona Revised Statutes (“A.R.S.”) § 32-1154(A)(2) Departure from or disregard of plans or specifications. Testimony and evidence were presented and, the following Findings of Fact, Conclusions of Law, and Recommended Order is made based on the entire record in this matter.

FINDINGS OF FACT

According to the Arizona Registrar of Contractors website, Energy Source Electric, Inc. (“Respondent”) is the holder of License No. R-11.190817-R (Electrical-Residential), and C-11.190818-R (Electrical-Commercial/Corporation), issued by the Arizona Registrar of Contractors (“Registrar”). The address of record for both licenses is 4963 South Aleppo Drive, Tucson, Arizona 85706-1601. Felipe Angel Villalba is listed as the Qualifying Party/Officer and Lucia Veronica Villalba is listed as an officer.

2017A-5151-CHC-ROC

On or about October 5, 2017, Rick Hollander, acting on behalf of the City of Tucson Code Enforcement (“Complainant”) filed a complaint with the Registrar alleging against Respondent “work without permit”. Further information provided included, (1) Code Enforcement received a complaint of work without permit. Complaint was verified; and (2) Information was that this contractor was doing the electrical work.

The Registrar assigned this matter to its Investigator Gregory Johndrow. On October 13, 2017, sent an Allegations Letter along with a copy of the complaint to Respondent at the address of 2832 E. Bilby Road, Tucson, AZ 85706, which was the address listed on Complainant’s complaint.

On November 3, 2017, the Registrar issued a Citation charging Respondent with possible violation of A.R.S. § 32-1154(A)(2).

Respondent submitted a Written Answer to Citation and Complaint arguing that it was hired by two (2) different customers to produce prints and follow by purchasing permits based on job being performed. Respondent stated they compiled and confirmed with Inspector Hollander.

The matter was sent to the Office of Administrative Hearings and set for an evidentiary hearing.

At Hearing, Inspector Hollander agreed that this Complaint should be dismissed.

2017A-5152-CHC-ROC

On or about October 5, 2017, Complainant filed a complaint with the Registrar alleging against Respondent “work without permit”. Further information provided included, (1) Code Enforcement received a complaint of work without permit. Complaint was verified; and (2) Information was that this contractor was doing the electrical work.

The Registrar assigned this matter to Investigator Johndrow. On October 13, 2017, Investigator Johndrow sent to the Respondent an Allegations Letter along with a copy of the complaint.

On November 3, 2017, the Registrar issued a Citation charging Respondent with possible violation of A.R.S. § 32-1154(A)(2).

Respondent submitted a Written Answer to Citation and Complaint arguing that it was hired by two (2) different customers to produce prints and follow by purchasing permits based on job being performed. Respondent stated they compiled and confirmed with Mr. Hollander.

The matter was sent to the Office of Administrative Hearings and set for an evidentiary hearing.

At Hearing, Inspector Hollander agreed that this Complaint should be dismissed.

2017A-5153-CHC-ROC

On or about October 5, 2017, Complainant filed a complaint with the Registrar alleging against Complainant “work without permit”. Further information provided included, (1) Code Enforcement received a complaint of work without permit. Complaint was verified; and (2) Information was that this contractor was doing the electrical work.

The Registrar assigned this matter Investigator Johndrow. On October 12, 2017, Investigator Johndrow sent an Allegations Letter along with a copy of the complaint to Respondent.

On November 3, 2017, the Registrar issued a Citation charging Respondent with possible violation of A.R.S. § 32-1154(A)(2).

Respondent submitted a Written Answer to Citation and Complaint arguing that it was not the contractor on this project after submitting a written estimate because the customer found a company to charge them less than Respondent.

The matter was sent to the Office of Administrative Hearings and set for an evidentiary hearing.

At Hearing, Investigator Johndrow testified that he sent the Allegation Letters and on November 2, 2017, not having received a 10-day response from Respondent, he telephoned Inspector Hollander for a status update. Inspector Hollander advised that the jobsites were actually being worked on before any permits were obtained. Inspector Hollander provided the following update. On Case 5151, a permit was obtained but not yet inspected; on Case 5152, a permit was obtained by General Contractor and Complainant wasn’t sure if Respondent was awarded the project; and on Case 5153, a permit was obtained by another contractor, and Respondent was not awarded the job after code enforcement become involved. Inspector Hollander also stated, Respondent has been cited multiple times in the past for the same violations and seemed to be the way he operates until he is caught and he is forced to comply with the code.

Based on that conversation, and not having any response from the Respondent, Investigator Johndrow then forwarded all three matters to the Registrar’s Legal Department. Investigator Johndrow testified that no jobsite inspection was conducted because the complaint was more of a statutory violation.

Complainant credibly testified that he was called out on another job of working without a permit and as he passed the jobsite of 4462 E. El Sol Circle, he noticed numerous people working on the job. When he returned to 4462, he was informed by another contractor but he has no paperwork or case against that one. The next day permits were obtained on that address.

Inspector Hollander stated that regarding 1902 N. Cloverland Avenue, he arrived on-site based on a complaint and when he arrived one person explained who the contractors were, and that after that permits were obtained.

Inspector Hollander testified that regarding 2649 N. Oracle Road, on May 17, 2017, the police called Complainant out because they have had multiple incidences with this address and when he arrived, he found work going on and in progress without permits with Mr. Villalba at the jobsite.

Photographs were also obtained from the Oracle property and submitted to the Office of Administrative Hearing on December 22, 2017, by Complainant as Exhibits in support of its findings at the Oracle Property.

Complainant testified that failure to obtain a permit is a violation of Tucson City Code.

Respondent testified that he wasn’t hired for the project but was called out on emergency by the customer because the property was being shut down, and that he would stop and talk to all the inspectors and give him a price. Respondent testified he did not have the job yet.

Respondent stated a lady who was doing roof work talked to Rick and she was obtaining permits.

Complainant stated Code Enforcement put up the fence due to hazardous conditions created from the porches and not the electrical.

Inspector Hollander was questioned whether he was told by Respondent that the conduit was shorting out and needs to be replaced and that he was working on it and not bidding on it, he replied yes.

In closing, Complainant testified he has no evidence on the other two complaints other than word of mouth and did meet Respondent at the Oracle property and the statements obtained were correct. Complainant asked that Respondent be disciplined for his observations at Oracle and that the other 2 complaints be dismissed.

Respondent stated that on all there (3) properties they performed no work at all or all of the allegations are word of mouth, and they had no contract on any of these and these jobs were finalized by other contractors

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 did not establish that Respondent was performing actual work to the property located at 2649 North Oracle Road to the electrical components other than what was provided as testimony by word of mouth. This Tribunal notes that photographs were taken at the Oracle property and provided as exhibits but the photographs do not reflect anyone from Respondent’s company actually performing the electrical work.

Complainant testified that Respondent was in violation of City Code, but did not provide as evidence of this code or copy of possibly Citation that may have been issued by the City to Respondent for its violation of city code. Documents provided by Complainant reflect that a permit application for the 2649 North Oracle property was submitted to the City on June 7, 2017, which seems to support Respondent’s testimony that it was called to the jobsite to bid on the job since the permit application followed shortly.

This Tribunal notes that Respondent failed to provide in its exhibits a copy of such written estimate that it allegedly provided when bidding on the Oracle project but finds that the fact the job was awarded to another contractor seems reasonable that it did provide a bid. This Tribunal also notes that Complainant did not subpoena any records of accounting from Respondent that may have traced funds received from the Oracle property owner or anything that may have suggested payments for work performed as it seems unlikely that a contractor would perform work and not receive payment. Therefore, Complainant failed to establish that Respondent departed from building codes by commencing work prior to obtaining a permit in violation of A.R.S. § 32-1154(A)(2).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the Complaint against Respondent’s License Nos. 190817 and 190818.

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, March 21, 2018

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors