ALJDEC decisions subject to certification as final

2019A-01207-CHC-ROC · Registrar of Contractors · 2019-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2019, and October 10, 2019 APPEARANCES: Complainant Roy Seaverson appeared and was represented by Tejay Coon. Bill Worlock, Owner and Qualifying Party, appeared on behalf of Respondent Worlock Mechanical Contractor LLC, which was represented by J. Daniel Campbell. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Worlock Mechanical Contractor LLC (Respondent) is the holder of License No. 273567 and 273566 issued by the Arizona Registrar of Contractors (Registrar). On or about December 26, 2017, Roy Seaverson (Complainant) received an Installation Proposal & Agreement from Respondent for the installation of six heaters on his patio including six new circuits. Complainant did not enter into a contract with Respondent at that time. On or about December 6, 2018, Complainant received a second Installation Proposal & Agreement from Respondent identifying the scope of work as “INSTALL (6) TOTAL 6000 WATT HEATER (6) TOTAL ON/OFF DUAL CONTROLLER, (6) . . . CIRCUITS.” The “Installed Price” for the project was $28,400.00. Complainant signed the contract and paid a deposit of $21,400.00. Prior to submitting the bid, Mr. Worlock inspected Complainant’s electrical panel. Mr. Worlock noted at that time that the breaker box did not have any available slots in which to install the circuits necessary to operate the heaters. Mr. Worlock did not notify Complainant that any work would need to be done to the electrical panel to ensure the heaters would operate after installation. On or about December 18, 2018, Respondent started work on the project. Prior to starting work, Respondent did not obtain a permit from the City of Surprise. On the second day of the project, December 19, 2018, Mr. Worlock mentioned to Complainant that the electrical panel might need to be upgraded. Complainant understood an “upgrade” could require removing the existing panel and placing a new larger panel. Complainant believed that, because Mr. Worlock did not say anything about the panel before starting the project and the way in which Mr. Worlock mentioned it to him, that the upgrade was not a significant issue. On the third and final day of the project, December 20, 2018, Mr. Worlock told Complainant that he would have to upgrade the panel and suggested that Complainant contact an electrician. Mr. Worlock instructed Complainant to tell the electrician that he needed to upgrade from 200 amp service to 400 amp service. Complainant contacted Oak Electric who was able to have Robert Clifton come out to inspect the panel on or about December 20, 2018. Mr. Clifton suggested Complainant engage the services of an electrical engineer. At the jobsite, Mr. Worlock asked Mr. Clifton to explain to Complainant what was needed and way and to “go easy on” Complainant. Mr. Clifton estimated it would cost anywhere from $5,000.00 to $20,000.00 to upgrade the panel. Complainant told Mr. Clifton that he never would have installed heaters if he knew it would cost that much. Respondent did not return to the project after December 20, 2018. On or about December 21, 2018, Stephen Foster, Electrical Engineer, inspected the panel with Mr. Clifton. Mr. Foster did certain calculations and informed Complainant that a permit would not have been granted by the City of Surprise until the panel had been upgraded. Mr. Foster later reexamined the panel and wrote a report. Mr. Foster’s calculations provided that the existing electrical load on the panel was 191 amps, and the electrical load for the heaters would be 162 amps for all six. Mr. Foster posited in his report that “it is clear that there was no engineering effort done in advance of the installation for this project” and that “[a]n engineer’s involvement would never have allowed the project to get this far.” On or about March 11, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Chris Fultz. After a jobsite inspection, Investigator Fultz 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 May 6th, 2019.

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

Complaint Item 1: Contractor was not properly licensed for scope of work attempted Investigator’s Observation: Contractor did work outside of his scope and licensing Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 2: No permit was obtained for the work Investigator’s Observation: A permit was in process but was never finished due to a red line issue with the permit. Contractor must confirm permit is issued prior to work starting. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

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 took no measures to obtain a permit or complete the project. After the deadline in the directive expired, Investigator Fultz 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)(3), namely A.A.C. R4-9-108; A.R.S. § 32- 1154(A)(16); and A.R.S. § 32-1154(A)(22). Investigator Fultz testified that based on conversations with his supervisor, he understood that Respondent’s license allowed it to install only one circuit per job. Because the contract at issue provided for one circuit per unit, or six circuits total, Respondent contracted beyond its scope. Investigator Fultz acknowledged that it was a homeowner’s responsibility to obtain a permit, but that a contractor should not begin work on a project until a permit had been approved. Investigator Fultz stated he did not believe Respondent could do any further work on the project until the electrical panel was upgraded. Complainant testified that he obtained a bid totaling $19,853.82 from Parker & Sons to upgrade the electrical panel from a 200 amp panel to a 400 amp panel. Complainant stated that APS notified him that a new electrical panel would have to be relocated on the side of the house so it was not behind his fence. Complainant also indicated that he would be required to place a new utility box in the front yard, which would result in trenching and landscaping from the new utility box to the new panel. Mr. Worlock testified that Complainant “rushed” the job because he wanted it done before the holidays, but he told Complainant that he needed an electrical contractor to review the project. Mr. Worlock stated that he told Complainant to contact him when he figured out and had the electrical availability to connect the heaters. Although not an electrical contractor or engineer, Mr. Worlock testified that he had “done his homework” and made some corrections to the submitted electrical calculations that he believed showed the existing panel had sufficient available load to support the heaters if a sub-panel was installed. Administrative notice is taken of Respondent’s prior License record on November 6, 2019. Such prior License record reflects that Respondent’s License No. 273566 was first issued on June 17, 2011, and was active. Such prior License record also reflects that there were no other open or previous complaints against Respondent’s license. Such prior License record reflects that Respondent’s License No. 273567 was first issued on June 17, 2011, and was active. Such prior License record does not include any additional information regarding Respondent’s license.[1] CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The evidence established that Respondent contracted to install six circuits when its license allowed it to install one circuit per job. Therefore, Complainant established that Respondent knowingly contacted beyond the scope of its license in violation of A.R.S. § 32- 1154(A)(16).[2] 4. Respondent contracted to “install” six heaters. Respondent argued, in essence, that it was not responsible for ensuring that the heaters were functional once installed by Respondent. Such an argument fails to make a reasonable interpretation of the contract. Any purchaser would reasonably believe that an “installed” heater would be operational after the work was complete without any additional work not included in the contract. Respondent’s failure to ensure a permit was approved prior to commencing the project also contributed to the issue in that, had Complainant been made aware of the cost to upgrade the electrical panel to allow for the installation of the heaters, Complainant would not have pursued the project further. 5. The evidence established that Respondent did not “install” the heaters as contracted. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[3] 6. The evidence established that Respondent did not attempt to complete the corrective work 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).[4] 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. 273567 and 273566 for a period of five days. 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, November 6, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The website does not include any information regarding the Qualifying Party, open or prior complaints against the license, or bond information. [2] A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.” [3] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [4] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826