ALJDEC decisions subject to certification as final

2019A-05722-CHC-ROC · Registrar of Contractors · 2020-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maritza J Jauregui,

COMPLAINANT,

v.

Rooter Hero Phoenix Inc.,

License Nos. ROC 275291 & ROC 302657,

RESPONDENT.

No. 2019A-05722-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING DATES: March 30, 2020, at 9:00 a.m. and April 23, 2020, at 9:00 a.m.

APPEARANCES: Maritza J. Jauregui (“Complainant”) appeared telephonically at both hearing dates; Rooter Hero Phoenix Inc. (“Respondent”) appeared telephonically through Adam Kinder, its Operations Manager at the April 23, 2020 hearing date.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Procedural Background

According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, on October 8, 2008, the Registrar issued License No. ROC 275291 for Specialty Dual CR-37 Plumbing to Respondent. On February 3, 2016, the Registrar issued License No. ROC 302657 for Specialty Dual CR-39 Air Conditioning and Refrigeration to Respondent. Respondent’s address of record for License No. ROC 275291 is 5424 S. 40th St., Phoenix, Arizona 85040-3919. Respondent’s address of record for License No. ROC 302657 is 3414 S. 48th St., Ste. 109, Phoenix, Arizona 85040-1937.

On or about November 14, 2019, Complainant filed a complaint with the Registrar against Respondent that alleged that it had installed a plumbing line in her house at 1715 W. Pershing Ave., Phoenix, Arizona 85029, without obtaining a necessary permit.

Complainant described Respondent’s scope of work as fixing a p-trap in the hallway bathroom and moving a new plumbing line inside for a relocated laundry room. Complainant did not allege that the pipes leaked, had insufficient pressure, or did not otherwise function as intended.

After Respondent did not fully resolve Complainant’s complaint, the Registrar referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on March 30 and April 23, 2020. Complainant testified and submitted two exhibits. Respondent submitted three exhibits and presented Operations Manager Adam Kinder’s testimony. The Registrar’s assigned investigator, Steve Klein, also testified.

Additional Hearing Evidence

On December 6, 2019, the Investigator Klein performed a jobsite inspection. On December 6, 2019, Investigator Klein on behalf of the Registrar issued a written directive, requiring Respondent to perform certain corrective work on or before December 31, 2019, in relevant part as follows:

Investigator’s Observation: This complaint is concerning the Respondent doing work without a building permit. At the time of inspection, the Respondent provided the permit which was recently purchased and will call for a building inspection.

After obtaining the correct permit regarding the work, have the work inspected and approved by the proper governing authority.

Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders and local building codes.

The directive was sent to Respondent at 11150 Sepulveda Blvd., 2nd Floor, Mission Hills, California 91345.

Investigator Klein testified that he did not perform a compliance inspection because on January 3, 2020, he called Complainant and she stated that Respondent had never called for an inspection. Inspector Klein referred the complaint to the Registrar’s Legal Department.

On January 6, 2020, the Registrar issued a Citation against Respondent’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, denying any statutory violations.

Complainant submitted a stop work order dated November 5, 2019, from the City of Phoenix until a permit was obtained. The city inspector described the scope of work on the project in relevant part as follows:

Repair of water damage to existing hall bath, remodel master bath, relocated laundry equipment. House has had its carport enclosed into a [garage], utility room is now a family room and a bedroom added to this side. Master bedroom has no proper egress and there is a room added to this area, along with a patio in between both additions. Work involves all trades and was done without the required building permits.

Some of the work involved Complainant’s homeowner’s insurance company’s repair of water damage. The city inspector summarized his conversations with Complainant and the insurance adjustor and his observations of the status of Complainant’s project, in relevant part as follows:

[Complainant] told me the scope of work involved removal of all the [gypsum wall board (“GWB”)] in kitchen and a bathroom, R&R insulation in several exterior walls, new plumbing in bath & kitchen, some electrical work as well. Also spoke with Joe the Farmer’s insurance agent. . . . There were 3 contractors on this job: The mitigation contractor who removed all the wet GWB and insulation, the rebuild contractor who replaced everything, and the plumber who replaced cracked drain lines in the bathroom and/or laundry. Also the plumber may have done some electrical work in the bathroom and/or laundry. The plumber’s work was outside the scope of the insurance claim so Joe was not sure what all the plumber did. . . . After reviewing notes on the 106-1 inspection and speaking with [Joe] it looks like there was work done by previous owner (additions and conversion). OK to issue RPBI for the water damage repair with floor plan and notes. This will not resolve the investigation. All violations need permits to close investigation.

According to the permit that Respondent obtained before the jobsite inspection, $631.60 had been paid for plan review and inspection, but an additional $250.00 remained outstanding for an investigation into other unpermitted work.

Complainant also submitted an email from the city inspector dated February 11, 2020, confirming that the wall would have to be opened and an inspection of the plumbing would need to be performed before the work passed inspection.

Mr. Kinder noted that he showed Investigator Klein the permit at the December 6, 2019 jobsite inspection. Mr. Kinder testified that he did not receive a hard copy of the directive because, for some reason, it had been sent to the franchise’s corporate office. Although he eventually got an electronic copy of the directive after he reached out to Investigator Klein, by that time the time allowed had expired.

Mr. Kinder testified that the work that Respondent performed was part of an extensive remodeling project. Although Respondent had paid for the permit for its scope of work, the city would not schedule an inspection of Respondent’s work until the fee for the investigation was also paid.

Respondent submitted texts between Complainant and Mr. Kinder in which he tried to explain that the city required an investigation fee for the unpermitted work that Complainant’s remodeling contractor and work that previous owners had performed before it would schedule an inspection of Respondent’s work. Complainant refused to pay the investigation fee because the Registrar had required Respondent to arrange an inspection and, according to Complainant, Respondent “is responsible for this investigation.”

On January 20, 2020, Respondent paid the $250.00 investigation fee to the City of Phoenix.

Thereafter, Respondent attempted to schedule an inspection. In an email chain, Complainant refused to allow an inspection because the deadline on the directive had expired and she felt that the “condition” that the city placed on her house was due to Respondent not getting a permit.

Mr. Kinder testified that Respondent was not trying to avoid work. Respondent was still willing to arrange an inspection by the City of Phoenix, to pay a drywall contractor to open and close the wall, and to perform any repairs that the city inspector ordered if Complainant would allow access.

Mr. Kinder testified that Complainant had kicked her remodeling contractor off the job.

Complainant stated that she wanted to move forward with the complaint because she did not trust Respondent or Mr. Kinder.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s disciplinary history on the Registrar’s public website. As of this date, Respondent’s contractor’s License No. ROC 275291 for plumbing is current and in good standing; no discipline has been taken against that license on the current record. Respondent’s License No. ROC 302657 for air conditioning and refrigeration was suspended on March 9, 2018, for non-renewal; no discipline has been taken against that license on the current record.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s licenses by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent did not use License No. ROC 302657 for air conditioning and refrigeration on Complainant’s project. That license should not be suspended or revoked as a direct result of Complainant’s workmanship complaint against Respondent.

Complainant did not establish that Respondent’s plumbing work will not pass the city’s inspection, when and if such inspection occurs, because Respondent did not comply with the Registrar’s or industry standards. Therefore, Complainant did not establish cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainant did establish that Respondent undertook the plumbing work at her house without a required permit, potentially furnishing cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(2), which was not charged in the Registrar’s citation. Although Respondent obtained a permit, it did arrange for an inspection, as the directive required. Therefore, Complainant established potential cause to revoke or suspend Respondent’s license under A.R.S. § 32-1154(A)(22).

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.” (Emphasis added.) Usually, a contractor’s license may not be revoked or suspended unless it has been given an opportunity to bring its work into compliance with statutory requirements; a homeowner’s refusal to grant reasonable access to a contractor in most cases will provide valid justification for the contractor’s failure to comply with a directive.

The Registrar sent the directive to the wrong address. Respondent established that it did not receive the directive in time to comply with it and that, when it finally did receive the directive, Complainant refused to allow access for it to belatedly comply with the directive.

The record does not show why Respondent proceeded without a permit or who alerted the city to the unpermitted work that was being performed at Complainant’s house. The record does show that, before Complainant made the insurance claim and Respondent contracted to perform work at Complainant’s house, previous owners had performed substantial unpermitted work, which resulted in significant code violations, such as the lack of egress from the master bedroom. Although these code violations were the cause of the city’s investigation and Complainant’s refusal to allow Respondent to schedule an inspection, these preexisting code violations and Complainant’s remodeling contractor’s failure to obtain a permit were not Respondent’s responsibility.

Under the circumstances, the record does not support imposition of a civil penalty against Respondent under A.R.S. § 32-1154(E).

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that, on or before forty days after the effective date of the final order in this matter, Respondent Rooter Hero Phoenix Inc. shall schedule an inspection by the City of Phoenix of the work it performed at Complainant Maritza J. Jauregui’s house.

IT IS FURTHER ORDERED that, on or before forty days after the effective date of the final order, Respondent shall provide satisfactory documentary proof to the Registrar that it has scheduled and passed an inspection by the City of Phoenix of the work it performed at Complainant’s house or that Complainant has refused to provide reasonable access for it to do so.

IT IS FURTHER ORDERED that, if Respondent fails to provide such satisfactory documentary proof, its License No. ROC 275291 shall be suspended for a period of five days; if Respondent timely provides such satisfactory documentary evidence, the Registrar may close Case No. 2019-05722.

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 five days from the date of that certification.

Done this day, May 8, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors