ALJDEC decisions subject to certification as final

2019A-05921-CHC-ROC · Registrar of Contractors · 2020-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patricia Benard Walls,

COMPLAINANT

Tim and Robyn Roth LLC,

DBA: Mr. Rooter Of Yavapai and Coconino Counties,

License No. 260875,

RESPONDENT

No. 2019A-05921-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 17, 2020

APPEARANCES: Complainant Patricia Benard Walls appeared on her own behalf. Respondent Tim and Robyn Roth LLC, doing business as Mr. Rooter of Yavapai and Coconino Counties did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Tim and Robyn Roth LLC, doing business as Mr. Rooter of Yavapai and Coconino Counties (Respondent) is the holder of License No. 260875 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 18, 2019, Patricia Benard Walls (Complainant) signed a contract with Respondent for the installation of a new septic system for a total cost of $7,616.36, which Complainant paid in full.

On or about November 29, 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 Jim Dimond. After a jobsite inspection, Investigator Dimond 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 February 7, 2020. . . .

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

DIRECTIVE REQUIREMENTS

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

Complaint Item 8: It was less than 10 months from the date of install the septic system was full again and needed to be drained.

Investigator’s Observation: At the time of inspection, the system was full again and water was about 18” down in the observation ports. The ports at the tanks show evidence of being full to the top.

The complainant’s have reported post inspection, that they are having to have the system pumped approximately every 2 weeks. The home is occupied by 3 people.

The respondent placed a chambered system between the tank and the existing Elgin system leach field. The area involved for the installation is not very large.

The concern is that the chamber installation installed is actually causing the system to not function properly due to the close proximity.

The respondent reportedly relayed to the complainant that no permitting was required.

On 1/15/20, I spoke with the CBO for Yavapai County and she indicated that a permit would be required for this work.

At the time of the inspection, the dirt over the area was dry.

The respondent is to obtain the necessary permitting and comply with any requirements set forth by Yavapai county.

Additionally, the system is not functioning as intended and the respondent is to determine the cause and correct the condition in an appropriate manner while complying with county requirements.

Governing Rule: ARS 32-1154.A.(3)(namely AAC R4-9-108)

Following the issuance of the written directive, Respondent offered to refund Complainant the original cost of the project. Respondent’s alternative resolution was to charge Complainant $30,000.00 more to correct the issues identified. After the deadline in the directive expired, Investigator Dimond 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)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

In its answer to the Citation, Respondent stated the following:

Upon investigation of the ROC they found out that the work we performed required a permit as the existing system was an alternative septic system (an Eljen System). That is when we realized that we did not do our due diligence in investigating [Complainant’s] septic system. We thought it was a conventional septic system which allow for a[n] additional drainage leg to be installed without a permit. Since finding out about our error we have been trying to come to a resolution to this unfortunate situation.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on April 17, 2020, at the Registrar’s Flagstaff office. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record and email address of record.

On March 27, 2020, the Office of Administrative Hearings issued an Order Setting Telephonic Hearing in which the parties were advised the hearing would be held telephonically and they needed to provide a telephone number at which they could be reached prior to the hearing. The Order was sent to the parties at the email addresses on record with the Office of Administrative Hearings.

The hearing was held on April 17, 2020. Complainant testified on her own behalf. Respondent did not request to appear telephonically and did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Investigator Dimond testified that the work performed by Respondent required a permit and Respondent failed to obtain that permit prior to performing the work. Investigator Dimond also noted that the system appeared almost full when he conducted his inspection and the system should not have to be pumped every two weeks if it were operating properly.

Complainant testified that based on her discussions with the county, Respondent failed to obtain a permit and that the system installed would have not have been approved for a permit if Respondent had applied for one. Complainant stated that Respondent’s only offered solutions to resolve the matter were to refund Complainant the cost of the contract or Complainant would need to pay $30,000.00 to correct the issues. Complainant testified that she had contracted with another company to perform the corrective work, which cost $12,463.00.

Administrative notice is taken of Respondent’s prior License record on May 7, 2020. Such prior License record reflects that Respondent’s License No. 260875 was first issued on November 26, 2009, and is active. Such prior License record also reflects that there were no other open complaints and no prior 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 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 attempt to complete the corrective work 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).

A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

Complainant established that the cost to repair Respondent’s work was $12,463.00.

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. 260875 for a period of three days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $12,463.00 as restitution pursuant to A.R.S. § 32-1156.01.

It is further recommended that if Respondent fails to pay the entire amount of the restitution 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 restitution.

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, May 7, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000