ALJDEC decisions subject to certification as final
2017A-850-CHC-ROC · Registrar of Contractors · 2017-08-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Carol L. Frazier,
COMPLAINANT,
v.
American Handyman Service LLC,
DBA: For A Job Done Right,
License No: 258243
RESPONDENT.
No. 2017A-850-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 28, 2017
APPEARANCES: Complainant Carol L. Frazier appeared on behalf of herself. Santee Herb Penrod appeared on behalf of Respondent American Handyman Service, LLC, DBA: For A Job Done Right.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On May 2, 2017, the Registrar of Contractors (“Registrar”) issued a notice setting the above-captioned matter for hearing on June 22, 2017, at the Office of Administrative Hearings.
The notice provides that the issues for hearing are the charges made in the Citation and Complaint.
On April 21, 2017, the Registrar issued a Citation against Respondent American Handyman Service, LLC, DBA: For A Job Done Right (“American Handyman”), alleging that American Handyman violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108), (A)(12) and (A)(22).
Santee Herb Penrod is a member of American Handyman.
In February of 2017, Complainant Carol L. Frazier entered into a contract with American Handyman Service to repair a water line under her trailer home.
American Handyman repaired the water line from November 4, 2016 to January 17, 2017. American Handyman was not licensed to perform plumbing work.
On February 13, 2017, the Registrar received a Complainant from Ms. Frazier alleging poor workmanship on the part of American Handyman.
On March 10, 2017, Registrar Investigator Arlo Houston conducted a job site inspection.
On March 15, 2017, Investigator Houston issued a written Directive. The March 15, 2017 Directive provides, in relevant, part as follows:
You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 31, 2017.
You are hereby directed to remedy the following violations by the appropriate means:
1. “Insulation surrounding water supply line on bottom of home cut and not resealed properly.”
American Handyman hired Bill Gundlach to repair the insulation around the water line. Bill Gundlach repaired insulation around the water line during the time period for compliance under the Directive.
On April 5, 2017, Investigator Houston conducted a compliance inspection. Investigator Houston’s April 11, 2017 compliance inspection notes provide, in relevant part, as follows:
Compliance Findings:
“Insulation surrounding water supply line on bottom of home cut and not resealed properly.”
Work done to this item does not meet workmanship standards. Insulation surrounding water supply line installed by respondent not completely resealed.
11. American Handyman filed timely response to the Registrar’s April 21, 2017 Citation alleging that it completed the insulation around the water line and that the homeowner may have compromised or altered the repair.
12. A hearing was held on July 28, 2017.
13. At hearing, Investigator Houston testified that American Handyman was not licensed to perform pluming work. Investigator Houston testified that at the time that he completed his compliance job site inspection, the insulation around the water supply line was not completely resealed.
14. Ms. Frazier testified that when Mr. Gundlach originally repaired the water line under the contract, he left a roll of duck tape and told her that she could seal the insulation around the pipe. Ms. Frazier testified that Mr. Gundlach failed to propertly reseal the insulation around the water line. Ms. Frazier testified that she did not observe the water line after Mr. Gundlach made repairs after the Directive was issued. 15. Santee Herb Penrod testified that he hired Bill Gundlach to make the correction listed in the Directive. Mr. Penrod testified that Mr. Gundlach infromed him that he properly resealed the insulation around the water line during the time period for compliance under the Directive. Mr. Penrod also testified that Ms. Frazier informed him that feral cats were breeding in the insulation.
16. Mr. Gundlach testified that he repaired Ms. Frazier’s water line. Mr. Gundlach testified that he completely resealed the water line during the time period for compliance under the Directive. Mr. Gundlach testified that he took photographs of the insulation that he resealed immediately after he finished the correction. Mr. Penrod had the photographs admitted into evidence.
17. Ms. Frazier reviewed the photographs taken by Mr. Gundlach after he reseaeld the insulation. Ms. Frazier contended that she did not know whether the photos were of her property or the area that American Handy was required to repair under the Directive.
18. At the end of the hearing, Colt Grifffin, the owner of the trailer home,
testified that he is an animal advocate and that there were never any goats or sheep out of their pin. Mr. Griffin testified that he owns 4 feral cats that he just had fixed and that there is “no way” that those cats damaged the insulation.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to Ariz. Rev. Stat. section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat. section 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
The preponderance of the evidence shows that American Handy complied with the Directive by completely resealing the insulation around the water line during the timeframe for compliance under the Directive. Ms. Frazier did not establish that after Mr. Gundlach corrected the work, the work was not subject to modification or alteration.
The preponderance of the evidence shows that American Handy’s corrective work met workmanship standards.
The preponderance of the evidence does not show that American Handy violated Ariz. Rev. Stat. sections 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108) and (A)(22).
The preponderance of the evidence shows that American Handy violated
A.R.S. section 32-1154(A)(12) by contracting beyond the scope of its license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, Registrar shall suspend Respondent’s License No. 258243 for a period of one day.
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, August 17, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors