ALJDEC decisions subject to certification as final

2019A-02562-CHC-ROC · Registrar of Contractors · 2019-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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). 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. 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. 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.

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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. 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). 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

----------------------- [1] The hearing was continued to October 25, 2019. [2] 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.”

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