ALJDEC decisions subject to certification as final

2019A-03266-CHC-ROC · Registrar of Contractors · 2020-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

R6600 Holdings LP,

COMPLAINANT

Seven Foot Construction LLC,

License No. 220001,

RESPONDENT

No. 2019A-03266-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 17, 2020

APPEARANCES: Julia Hanson, Owner, appeared on behalf of Complainant R6600 Holdings LP. Klaus Mehrens, Owner and Qualifying Party, appeared on behalf of Respondent Seven Foot Construction LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Seven Foot Construction LLC (Respondent) is the holder of License No. 220001 issued by the Arizona Registrar of Contractors (Registrar).

In April 2019, R6600 Holdings LP (Complainant) entered into an agreement with Respondent to “remove old galvanized pipes” from a property and completely “repipe” the project. Respondent was also to convert a garage space into a rental unit.

In May 2019, Complainant fired Respondent from the project due to its inability to perform the work in a timely manner.

On or about June 24, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on October 11, 2019.

. . . .

DIRECTIVE REQUIREMENTS

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

Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions.

Complaint Item 1: Klaus was hired to repipe/remove old galvanized pipes from entire building. There is still rusty water, this mean he missed some. He refuses to come & fix.

Investigator’s Observation: Respondent did not appear for Inspection and did not provide permit/inspection documentation as requested in Jobsite Inspection notice. Respondent’s Estimate (no contract provided) states “Replumb – Replace all hot/cold pipes”. Complainant directed me to a tub and indicated that this was the only location with the rusty water issue. Correction of rusty water does not requires permit/inspection and no proof of this was provided by Respondent. Respondent must comply with all permit/inspection requirements and provide copies of these documents to the Registrar.

. . . .

Complaint Item 3: Unsealed holes @ roof where plumbing vents penetrate through. Refuse to fix.

Investigator’s Observation: Respondent did not appear for Inspection. Estimate (no contract provided) states “repair roof cover at (4) roof penetrations”. If the subject penetrations were existing, they appear to be part of the contract and need to be completed. If the penetrations were created by the mechanical work performed by the Respondent, it is the Respondent’s responsibility to seal them.

. . . .

Complaint Item 4: Poor workmanship – crooked 2 x 4 cross blocking, door does not work.

Investigator’s Observation: Respondent did not appear for Inspection and did not provide permit/inspection documentation as requested in Jobsite Inspection notice. Respondent must comply with all permit/inspection requirements and provide copies of these documents to the Registrar. I cannot determine if this is a framing or hardware issue but the door does not work and does not meet workmanship standards as it is nearly impossible to lock.

. . . .

Complaint Item 5: Plumbing vents installed incorrectly where it should be on exterior wall.

Investigator’s Observation: Drawings were not onsite at the time of Inspection. Respondent did not appear for Inspection and did not provide permit/inspection documentation as requested in Jobsite Inspection notice. Respondent must comply with all permit/inspection requirements and provide copies of these documents to the Registrar.

On or about October 7, 2019, Respondent obtained the permit relating to complaint item #1.

By agreement of the parties, the deadline in the directive was extended to October 28, 2019.

By agreement of the parties, the deadline in the directive was extended to January 1, 2020.

After the extended deadline in the directive expired, Investigator Melton 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)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Melton testified as to her observations of the jobsite during the inspections.

Ms. Hanson testified that she had discussions with Respondent that there was rust coming out of the water pipes in one of the units, and she wanted him to replace all the old galvanized pipes to eliminate that issue. Ms. Hanson reported that rust was still coming out of the bathtub in Unit 1. Ms. Hanson also stated that Respondent left a hole in the roof of the garage unit and that the door referenced in the directive was not operational. Ms. Hanson asserted that Respondent said he would perform the corrective work in December 2019, so she spent two days driving back to Arizona and notified her tenants that they needed to be out of the building that day, but then Respondent failed to appear to perform the work.

Mr. Mehrens testified that Respondent was not contracted to remove all the galvanized pipes and/or determine the source of the rust in the units. Mr. Mehrens asserted that he pulled a permit for the building to convert the garage to a rental unit, and that that permit allowed him to perform the plumbing work on the three existing units. Mr. Mehrens acknowledged that he pulled a permit for the existing units after the directive was issued. Mr. Mehrens also indicated that the pipe in the garage unit, that went through the hole in the roof, was put in place merely for the pressure testing required by the permit. Mr. Mehrens argued that he would have removed the pipe and repaired the hole in the roof if he had not been fired from the job.

Administrative notice is taken of Respondent’s prior License record on December 7, 2020. Such prior License record reflects that Respondent’s License No. 220001 was first issued on May 21, 2006, and is active. Such prior License record also reflects that there were no other open complaints and one previous complaint resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that Respondent did not replace all of the pipe in the project as agreed upon. While Respondent argued that was not the agreement of the parties, its failure to have a written contract clearly outlining the scope of the project leaves the Administrative Law Judge to rely on a credibility determination. In this, Ms. Hanson was credible in her testimony that it was her intention that Respondent replace all of the pipe to eliminate the rust in the bathtub and Respondent understood that to be the work to be completed. Accordingly, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The damaged door and the hole in the roof were obvious workmanship issues that Respondent left on the project. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Respondent obtained the permit needed for the existing units, but did not complete any of the work to address the issues identified. Even though Respondent was fired from the job, Respondent was obligated to repair the workmanship issues left on the project prior to its termination. 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).

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. 220001 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.

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-137160-45720000Done this day, December 7, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000