ALJDEC decisions subject to certification as final
2018A-783-CHC-ROC · Registrar of Contractors · 2018-07-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marie Ann Bistline,
COMPLAINANT,
v.
Cody's Plumbing LLC ,
License No: 279673
RESPONDENT.
No. 2018A-783-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 11, 2018, 8:30 A.M.
APPEARANCES: Complainant Marie Bistline appeared on her own behalf; no appearance was made on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Cody's Plumbing, LLC (Respondent), is the holder of License Number 279673 issued by the Registrar of Contractors (Registrar).
2. On or about February 20, 2018, Marie Ann Bistline (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with Respondent installation of a water heater at a residence in Kingman, Arizona (“project”). The Complaint indicated a contract amount of $850.00.
3. The Registrar performed an inspection of the project on March 6, 2018. Thereafter, the Registrar issued a Directive, dated March 16, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 5, 2018, as follows:
Complaint Item 1: Job not finished.
Investigator’s Observation: Complainants statement, not a specific workmanship issue.
Governing Rule: No violation could be substantiated.
Complaint Item 2: Water heater at angle, not upright.
Investigator’s Observation: Water heater is not installed plumb. Appears to lean to the right.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 3: No TPT drainage piping.
Investigator’s Observation: Drainage required when heater is located in area where water discharge would cause damage.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 4: Gas supply valve against heater.
Investigator’s Observation: Gas valve is up against heater.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 5: Vent hood (cap) found on ground.
Investigator’s Observation: Respondent was last to work on heater and vent stack.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 6: No metal drain pan.
Investigator’s Observation: Overflow drain pan required in living area.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 7: Only one person to install.
Investigator’s Observation: Not a workmanship issue.
Governing Rule: No violation could be substantiated.
Complaint Item 8: No vent draft test.
Investigator’s Observation: RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 9: No air filter.
Investigator’s Observation: RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 10: No 3-inch clearance from walls.
Investigator’s Observation: Heater did not appear to have proper required clearances.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 11: No screws in vent pipe.
Investigator’s Observation: Vent stack taped. Screws required.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 12: Did not clean "cabinet" prior to installation.
Investigator’s Observation: Cannot confirm at time of inspection.
Governing Rule: No violation could be substantiated.
Complaint Item 13: No permit.
Investigator’s Observation: Respondent should obtain any/all required permits at his sole expense and get any/all required inspections.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 14: No return phone calls or messages.
Investigator’s Observation: Not a workmanship issue.
Governing Rule: No violation could be substantiated.
Complaint Item 15: Has not returned to finish job.
Investigator’s Observation: Respondent should properly complete water heater project.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 16: Did not complete warranty information.
Investigator’s Observation: Respondent should properly complete and provide any/all required warranty information.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 17: Took off cupboard door and trim to fit in water heater.
Investigator’s Observation: Cupboard door was sitting in kitchen at the time of the inspection. Water heater controls would not have allowed the door to be installed and properly close.
RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS FOLLOWING ALL CODES AND MANUFACTURERS INSTALLATION REQUIREMENTS.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 18: Lit heater, took partial payment.
Investigator’s Observation: Respondent should properly complete the project and collect any monies still owed.
Governing Rule: A.R.S. §32-1154-A. (3)(namely A.A.C. R4-9-108 Workmanship Standards for Licensed Contractors.
Complaint Item 19: Hired qualified contractor to perform job.
Investigator’s Observation: Not a workmanship issue.
Governing Rule: No violation could be substantiated.
4. The Registrar conducted a compliance inspection of the project on April 27, 2018, and noted that corrective work had not been performed or completed.
Compliance Jobsite General Notes: The water heater has been relocated to an outside location/cabinet. Due to this relocation most of the issues on the Registrars Written Directive dated March 16, 2018 no longer apply.
Respondent has rerouted piping.
The Respondents piping in the old interior water heater cabinet is not properly secured.
Respondent has caused minor damage to the interior of the sink cabinet that needs to be repaired.
RESPONDENT IS NOT IN COMPLIANCE
Complaint Item 9: No air filter.
Investigator’s Observation: Manufacturers installation guide states this heater came equipped with a combustion air filter and to have the filter in place for proper operation.
Filter was not observed to have been installed.
RESPONDENT IS NOT IN COMPLIANCE.
All the other items are either corrected or no longer apply.
5. The Registrar then issued a Citation to Respondent, dated May 3, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. 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, dated June 1, 2018, setting a hearing for July 11, 2018, at 8:30 A.M.
The Registrar mailed a copy of the Notice of Hearing to Respondent on or about June 1, 2018, at its address of record.
7. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.
8. At the July 11, 2018 hearing, Complainant Mary Ann Bistline testified on her own behalf. Cliff Corlett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 59.
9. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically nor did it request that the hearing be continued.
10. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that Respondent moved the water heater to another location, but there were still some deficiencies that existed as a result. He further testified that the local jurisdiction building inspector had approved the installation.
11. Complainant Marie Ann Bistline testified that Respondent first replaced her water heater inside the residence then moved the replacement water heater to an outside location but that Respondent did not receive a permit for the work until two weeks later. (Complainant’s Exhibit 46). She further testified that there are other deficiencies in the outdoor water heater that were not listed in the Directive and that she believed were not addressed by the Investigator.
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 in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
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....
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. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Although Respondent in large part remedied the items in the Directive, there were still items remaining from the Directive that Respondent did not address or that were created during the course of corrective work that the Investigator observed at the compliance inspection and documented in his compliance inspection notes.
7. As to those deficiencies alleged by Complainant that are not listed in the Directive or in the Investigator’s compliance inspection notes, such alleged items are not part of this proceeding.
8. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Despite Respondent’s efforts to correct the various deficiencies, there was no evidence presented of a valid justification for not completing the corrective work or for creating a new deficiency in connection with those efforts.
9. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of § 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, Cody's Plumbing, LLC’s, License No: 279673 is suspended for one day.
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 31, 2018.
/s/ Roger Geddes __
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors