ALJDEC decisions subject to certification as final
2018A-273-CHC-ROC · Registrar of Contractors · 2018-07-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Yanina Hernandez,
COMPLAINANT,
v.
DM Plumbing Services LLC dba,
Donny's Plumbing & Sewer ,
License No: 309320
RESPONDENT.
No. 2018A-273-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 26, 2018, 8:30 A.M.
APPEARANCES: Complainant Yanine Hernandez appeared on her own behalf; Don Mayerle appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. DM Plumbing Services, LLC, dba Donny's Plumbing & Sewer (Respondent), is the holder of License Number 309320 issued by the Registrar of Contractors (Registrar).
2. On or about January 19, 2018, Yanine Hernandez (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and “illegal completion” in connection with piping work performed by Respondent for Complainant’s residence that resulted from a water leak.
3. After an inspection of the job site on February 9, 2018, the Registrar issued a Directive dated February 12, 2018, requiring Respondent to remedy various alleged violations by March 2, 2018, as follows:
1. Correct plumbing installed per local jurisdiction requirements and failed inspection.
4. The Registrar then conducted a compliance inspection on March 20, 2018, at which time it made the following findings:
Compliance Findings:
1. Correct plumbing installed per local jurisdiction requirements and failed inspection. Permit #239159 is not finalized by local jurisdiction. Not completed at this time.
5. As a result, the Registrar then issued a Citation to Respondent, dated April 13, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for June 26, 2018, at 8:30 A.M. At the hearing, Complainant Yanine Hernandez testified on her own behalf; Respondent presented the testimony of Donald Mayerle. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 -`11 and Respondent’s exhibit numbers 1 - 8.
7. The Tribunal did not conclude the hearing on June 26, 2018, and advised the parties that the hearing would remain open until July 2, 2018, in order to give the parties an opportunity to formally submit copies of the photographs that they had presented at the hearing but that were only viewable on their respective cell phones.
8. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that the work in question had not received a required building permit and that the City of Scottsdale Building Inspection (“City”) issued a “red tag” rejection, dated January 19, 2018, that reflected that the S trap was illegal, that the trap needed to be at least 6 inches off the floor, and that the drain needed to be in the wall with a vent to the roof. (Complainant’s Exhibit 2). He testified further that as of June 26, 2018, a building permit from the City had yet to be finalized.
9. Complainant testified that Respondent originally contracted only to repair a leaking main pipe in her backyard which required breaking into the concrete. She stated Respondent also had to dig a hole inside her residence to access the main line. She further testified that during the course of this work, as a courtesy to Complainant and because Respondent had been breaking the concrete to access the main water line leak, Respondent removed Complainant’s washer discharge pipe that had previously ran atop Complainant’s back patio. (Respondent’s Exhibit 8). She further testified that in doing so, Respondent in large part brought the washer discharge pipe inside the residence, but ran it outside an interior wall. (Complainant’s Exhibit 11).
10. Ms. Hernandez further testified that several weeks before Respondent’s work, a different contractor had moved Complainant’s washer from the exterior of the residence to the interior. She further stated that after Respondent completed its work, the washer piping did not pass building inspection because it was outside of the wall.
She stated that she called Respondent and told it that the washer discharge configuration did not pass the City’s inspection. She said Respondent replied that to move the discharge pipe to inside the wall would cost an additional $1,200.00.
11. She also stated that during the course of Respondent’s work, Respondent also moved the auto washer box and the adjacent electrical outlet such that they were now too close to each other. (Complainant’s Exhibit 3). She stated that when the City last came out to the residence, she was told the original plumbing deficiencies were now in compliance with building codes but that the auto washer box had been moved too close to an electrical outlet. She testified that she cannot use her washer because of a potential fire hazard due to the proximity of the washer piping and the electrical outlet.
12. Donald Mayerle testified on behalf of Respondent that the washer plumbing was never part of Respondent’s original scope of work and that the washer plumbing deficiencies were caused by a different contractor Complainant had hired before Respondent started work. He testified that as a courtesy to Complainant, Respondent moved the washer discharge pipe that lay atop her back patio and relocated the discharge pipe behind the washer. He stated he installed a new washer trap outside of the wall and disagreed with City of Scottsdale that such a trap was illegal. He explained that it was compliant because the washer was in an Arizona sun room which he stated was non-living space. He further testified that the Register nevertheless required him to perform corrective action for another contractor’s work, which Respondent chose to undertake. He stated that the items in the City’s red tag have now been remedied, but that the City had not returned to re-inspect.
13. Mr. Mayerle further testified that based on photographs he had sent to the City, the City had informed him that the current washer piping configuration would not pass inspection because the auto washer box was now too close to the electrical outlet and because the framing in the wall is missing a 2 x 4 stud. He stated that it had been necessary for Respondent to move the auto washer box in order to install proper venting and a trap to comply with the City’s red tag directive. He stated further that it was his belief that the auto washer box had already been too close to the electrical outlet and therefore already out of compliance before Respondent even moved it. He stated he did not believe Respondent had moved the electrical outlet.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. A.R.S. § 32-1154(A) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,
...
2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
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.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or specifications or any building codes and under A.R.S. § 32-1154(A)(3) for the failure to perform work in a professional and workmanlike manner.
7. The Tribunal acknowledges Respondent’s position that the Citation in this case had nothing to do with the scope of work for which Respondent original contracted and only resulted from unrelated work Respondent performed as a courtesy to Complainant. Nevertheless, even work performed as courtesy must comply with applicable building codes and must be performed in a professional and workmanlike manner. Respondent argued that its placement of the washer discharge pipe outside of the wall was compliant with building codes because it was in a room that was non-living space. However, Respondent presented no evidence to support its position nor did it present any evidence that it formally disputed the finding of the City or that it took any action to appeal the City’s determination that its work was non-compliant. Instead, Respondent proceeded with corrective action and in correcting the original deficiencies cited by the City (S trap and drain in the wall with vent), it performed work that it believed did not comply with building codes, namely, moving the auto washer box too close to the electrical outlet.
8. Despite Respondent’s belief that the auto washer box did not comply with building codes, in that the City had not performed a final inspection of the washer plumbing, there was no direct evidence presented that the proximity of the auto washer box and the electrical outlet and Respondent’s work relating thereto was in fact non-compliant. However, the Tribunal still finds that there has been a departure from or disregard of building codes a and failure to perform work in a professional and workmanlike manner because Respondent proceeded without a building permit and has yet to obtain a final inspection of the work it performed.
9. Complainant has also presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for failure to perform corrective action. Respondent has not demonstrated that there was a valid justification for its failure to fully perform corrective action. While Respondent argued that it should not have been required to perform corrective action for another contractor’s work, Respondent in any event proceeded with corrective action to correct the washer plumbing issues. However, even though Respondent has proceeded, it has still yet to obtain a final permit as required and therefore the corrective action was not fully performed.
10. Respondent argued that washer box was already non-complaint with building codes before Respondent moved it. However, once Respondent undertook any work involving the washer box, it was incumbent upon Respondent to bring it into compliance. Respondent admitted that it did not do this.
11. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154 (A)(3), and A.R.S. § 32-1154 (A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, DM Plumbing Services, LLC’s, (dba Donny's Plumbing & Sewer) License Number 309320 is suspended for two days.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, July 23, 2018.
/s/ Roger A. Geddes_____
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors