FINACT2019A-02562-ROC-FinalAgencyAction-6640.pdf

2019A-02562-CHC-ROC · Registrar of Contractors · 2019-11-26

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Steven Paul McKeage, Case No. 2019-02562 COMPLAINANT, Docket No. 2019A-02562-CHC-ROC v. S A K Electric and Plumbing Inc., FINAL ADMINISTRATIVE License Nos. ROC 115186, 178593, 115188, DECISION AND ORDER 115189, 129238, 129239

RESPONDENT. Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on January 4, 2019. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Phoenix, Arizona 85505-6748

FINAL NOTE On page 5 line 25, after the word license, insert “no. 115186.” On page 6, line 5, replace “(A)(5)” with “(A)(7).” Dated November 25, 2019. By: /s/ Joseph Citelli_______________ Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail November 25, 2019 to: Respondent S A K Electric and Plumbing Inc S Meridian Rd Apache Junction, AZ 85120 Complainant Steven Paul McKeage 4033 E Mitchell Dr Phoenix, AZ 85018 Copy sent electronically this same date to: Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-02562 / DU

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 11.14.2019 OAH ALJ Recommendations - AZROC <[email redacted]> ROC LEGAL

New ALJ Decision transmitted for ROC (2019A-02562-CHC-ROC) message

OAH Electronic Decision Transmission System <[email redacted]> Thu, Nov 14, 2019 at 12:57 PM To: [email redacted]

This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows:

Decision type: ALJ Decision Matter ID: 2019A-02562-CHC-ROC Filed by: OAH Filed on: 11/14/2019 Due Date for Final Agency Action (if applicable): 12/19/2019

You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2019A-02562-CHC-ROC-ALJDecision-6620.pdf.

To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. RECEIVED 11.14.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Paul McKeage, No. 2019A-02562-CHC-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

S A K Electric and Plumbing, Inc., ROC License: ROC 115186, 178593, 115188,115189, 129238, 129239 RESPONDENT.

HEARING: October 25, 2019

APPEARANCES: Complainant Steven Paul McKeage appeared on behalf of

himself. Steve Kernagis appeared on behalf of respondent S A K Electric and

Plumbing, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On September 11, 2019, the Registrar of Contractors, (Registrar), issued a NOTICE OF HEARING setting the above-captioned matter for hearing on October 11, 2019, by the Office of Administrative Hearings in Phoenix, Arizona. 1 2. Respondent S A K Electric and Plumbing, Inc. (S A K) holds license numbers 115186, 178593, 115187, 115188, 115189, 129238, and 129239, issued by the Registrar. 3. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and COMPLAINT. Through the CITATION, the Registrar alleges that S A K may have violated ARIZ. REV. STAT. sections 32-1154(A)(3) (specifically, ARIZ. ADMIN. CODE section R4-9-108); ARIZ. REV. STAT. section 32- 1154(A)(22).

The hearing was continued to October 25, 2019.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.14.2019 ROC LEGAL

4. The CITATION shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of S A K. 5. On or about January 29, 2016, Mr. McKeage and S A K entered into a contract wherein S A K would remodel Mr. McKeage’s home. 6. On or about May 1, 2016 S A K began work on Mr. McKeage’s home. 7. On or about September 12, 2018, S A K stopped work. 8. On or about May 16, 2019, the Registrar received a COMPLAINT from Mr. McKeage alleging poor workmanship on the part of S A K. 9. On or about June 28, 2019, Registrar Investigator Randy Morris conducted a jobsite inspection. 10. On July 3, 2019, Investigator Morris issued a DIRECTIVE. 11. On July 5, 2019, Investigator Morris issued an AMENDED DIRECTIVE after receiving additional information about Complaint Item #2. The July 5, 2019 DIRECTIVE provides, in relevant part, 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 July 22, 2019 . You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: “Master Bathroom Water Closet - Move sink line to eliminate offset and re-tile wall.” (NOTE: The Complainant is referring to the waste plumbing that is against the corner of both walls) Investigator’s Observation: Verified that the master bathroom water closet sink waste line is installed in the corner of the room, unable to set escutcheon, all tile around the waste pipe has been removed and missing tile is also verified. Allegation is substantiated.

RECEIVED 11.14.2019 ROC LEGAL

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Amended Complaint Item 2: “Rear Exterior - Fix offset at sewer connection to city sewer, excavate, compact and resod repair” Investigator’s Observation: Complainant provide a photo of a third party inspection of the sewer line dated 6/1/19 that shows a deviation in the sewer line. Allegation is substantiated. Amended Note: The Respondent contacted the Investigator and provided evidence showing that the allegation was addressed and completed prior to the Directive issue date and after the date of the third party investigation. The Directive is amended and Complaint Item #2 is closed as completed. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Amended Complaint Item 3: “Rear Exterior - Sewer trench sinking, excavate entire trench depth and compact correctly and resod” Investigator’s Observation: Verified a depression in the soil at the rear yard that appears to be caused by soil subsidence due to improper compaction. Correction of Complainant Item 2 should correct this complaint item. Amended Note: the allegation of the soil depression in the rear yard is substantiated and continues to be part of the Directive for correction. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Complaint Item 5: “East and Master Bathroom - Move sconces down as directed on Change Order #12” Investigator’s Observation: Reviewed job site provided photo of a blue print that the Respondent provided that states in handwritten words “OK (check mark) boxes & wires, (initialed by SM), no date on this document. Change order #12 was issued and signed by both parties on 8/29/19. Measurements were taken in the master bathroom and hall bathroom and light fixture junction boxes are not at the approved height. Allegation is substantiated.

RECEIVED 11.14.2019 ROC LEGAL

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Complaint Item 6: “East Bathroom - Properly tighten tub faucet” Investigator’s Observation: Verified that the hall bathroom tub faucet is loose. Allegation is substantiated. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Complaint Item 7: “East Bathroom - Shower Head above leaks when turned on” Investigator’s Observation: Verified that the hall bathroom shower head leaks when turned on. Allegation is substantiated. Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. …………………

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant. (Emphasis Added).

12. S A K did not correct the items listed in the DIRECTIVE by July 22, 2019. 13. On August 12, 2019, Investigator Morris conducted a compliance job site inspection. Investigator Morris found that S A K had not repaired complaint items 1, 3, 5, 6, and 7. 14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 15. At hearing, Mr. McKeage testified on behalf of himself. Steve Kernagis testified on behalf of S A K.

RECEIVED 11.14.2019 ROC LEGAL

16. Investigator Morris testified regarding his job site inspection, the issuance of the DIRECTIVE, and his compliance and prehearing inspections. 17. Mr. McKeage contended that S A K performed poor work when it remodeled his home. 18. Mr. Kernagis testified to the effect that Mr. McKeage did not allow S A K to access his home after the DIRECTIVE expired. Mr. Kernagis provided no testimony or written evidence to establish that Mr. McKeage denied access to his home during the time period for compliance under the DIRECTIVE. 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 violation by a preponderance of the evidence. See ARIZ. REV. STAT. section 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 preponderance of the evidence Respondent did not perform the work in a professional and workmanlike manner in violation of ARIZ. REV. STAT. section 32- 1154(A)(3), namely A.A.C. R4-9-108.2 4. The preponderance of the evidence shows that Respondent failed to correct the items listed in the Registrar’s DIRECTIVE without valid justification, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend S A K Electric and Plumbing, Inc.’s license for one day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to ARIZ. REV. STAT. section 32-1154(E).

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 RECEIVED 11.14.2019 ROC LEGAL

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 ARIZ. REV. STAT. section 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, November 13, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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.”