ALJDEC decisions subject to certification as final

2019A-04820-CHC-ROC · Registrar of Contractors · 2020-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gamma Delta Housing Corporation,

COMPLAINANT

In and Out Plumbing Sewer and Drain Service LLC,

ROC License: ROC 226245,

RESPONDENT

No. 2019A-04820-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 20, 2020

APPEARANCES: Kevin Miniat, President, appeared on behalf of Complainant Gamma Delta Housing Corporation. Joe Cruz, Owner, appeared on behalf of Respondent In and Out Plumbing Sewer and Drain Service LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

In and Out Plumbing Sewer and Drain Service LLC (Respondent) is the holder of License No. 226245 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 14, 2019, Kevin Miniat, on behalf of Gamma Delta Housing Corporation (Complainant), entered into a contract with Respondent for the installation of a new urinal in the fraternity house. The contract between Complainant and Respondent did not include an advisement that Complainant had the right to file a complaint with the Registrar.

Mr. Miniat had requested that one of the two existing urinals be replaced with a new urinal that matched the urinal that would be left installed. That is, Mr. Miniat wanted two matching urinals installed when the project was completed.

Respondent advised Mr. Miniat that it was unable to locate a urinal to match either of the existing urinals. Mr. Miniat authorized Respondent to purchase two new matching urinals.

Respondent replaced the two existing urinals with two new urinals that did not match.

On or about September 23, 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 Arlo Houston. On November 14, 2019, after a jobsite inspection, Investigator Houston 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 December 3, 2019.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Contractor installed 2 new urinals, but they do not match each other. He was instructed to install 2 matching urinals. (1st asked to replace either urinal with another that would match the other. He said he couldn’t locate a match for either existing; so I authorized him to buy 2 new ones, so they would match.)”

Investigator’s Observation: Verified. At time of inspection I observed 2 urinals installed by respondent which do not match each other. The invoice from respondent does not specify for urinals which do not match each other.

Governing Rule: 32-1154 (A)(3) Violation of Any Rule Adopted by the Registrar

Namely Rule R4-9-108

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

Following the issuance of the written directive, Respondent replaced one of the two new urinals with a new urinal that matched the other. After the deadline in the directive expired, Investigator Houston was notified of the corrective work that had been performed. Investigator Houston conducted a compliance inspection to determine if the corrective work was appropriate.

During the compliance inspection, Investigator Houston noted that the two urinals matched, but differed in height by 11/16 of an inch.

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)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Houston testified that the Registrar did not have a specific standard regarding the installation of urinals having to be at the same height, but noted that the units should not be visually different in heights.

Mr. Miniat testified that the only reason he authorized Respondent to buy any new urinals was so the two urinals would match. Mr. Miniat denied either of the existing urinals were defective and needed replaced. Mr. Miniat testified that the contract was a time and materials contract, so if the work necessary to install the urinals correctly would have taken more time, he would have paid to perform the work according to the contract.

Diana Cruz testified that Mr. Miniat did not ask for matching urinals as that would require adjusting the drains. Ms. Cruz indicated that if Mr. Miniat had asked for matching urinals when the project began, Respondent could have explained the additional charges for moving the drains.

Administrative notice is taken of Respondent’s prior License record on March 11, 2020. Such prior License record reflects that Respondent’s License No. 226245 was first issued on March 8, 2007, and is active. Such prior License record also reflects that there were no other open or previous complaints 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 contract did not specify that the urinals were to be matching when the project was completed and the exact nature of the discussions between Complainant and Respondent cannot be known definitively. However, the weight of the evidence presented established that Complainant wanted two matching urinals and the Registrar’s standards required that the two urinals be installed at the same height.

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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 complete the corrective work in an appropriate manner 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).

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. 226245 for a period of one day.

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.

-54864001

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-137160-45720000Done this day, March 11, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000