ALJDEC decisions subject to certification as final

2020A-04322-CHC-ROC · Registrar of Contractors · 2021-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Valerie Anderson,

COMPLAINANT,

v.

Dirty Girl Plumbing, Inc.

DBA: Jeannie Hall Plumbing and Drain,

License No. ROC 324711,

RESPONDENT.

No. 2020A-04322-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 26, 2021

APPEARANCES: Complainant Valerie Anderson appeared on behalf of herself. Jeannie Hall appeared on behalf of Respondent Dirty Girl Plumbing and Drain, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Dirty Girl Plumbing and Drain, Inc. holds Special Dual CR027

License No. 324711 issued by the Arizona Registrar of Contractors (Registrar).

2. Jeannie Hall is Respondent’s qualifying party.

3. On or about August 12, 2020, Complainant Valerie Anderson and

Respondent entered into a residential remodeling contract.

4. Respondent did not provide Ms. Anderson with a written contract that advised Ms. Anderson of her right to file a complaint with the Registrar against Respondent for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(A).

5. On or about August 12, 2020, Respondent began work under the contract.

6. On or about August 27, 2020, Respondent stopped work.

7. On or about September 9, 2020, the Registrar received a complaint from Ms. Anderson alleging poor work on the part of Respondent.

8. On or about October 5, 2020, Registrar Investigator David Thomas conducted a job-site inspection. Investigator Thomas concluded that the work described in complaint items 2, 4, 5, 7, and 8 was performed outside the scope of Respondent’s CR-37 plumbing license. Investigator Thomas found that Respondent failed to install the vent in a professional and workmanlike manner because the studor vent was placed at “eye level and would be unsightly.” See the Registrar’s Administrative Record, pg. 29.

9. On October 28, 2020, Investigator Thomas issued a Directive against Respondent’s license. The Directive provided that Respondent was restricted from performing work that was outside the scope of its license. The October 28, 2020 Directive provided, in relevant part, as follows:

Dear Respondent:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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

...................

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 reasons, 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:

Compliance Item: 1 - vent in upper wall instead of lower cabinet.

Investigator’s Observation: This complaint is verified.

Respondent shall correct by appropriate means. Studor vent

placed at upper cabinet height / approximately eye level and

unsightly.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Electrical lines stuffed into floor plate 1/4 higher than floor causing trip hazard in the middle of the kitchen floor.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Electrical floor box appx. 1/4 inch above floor causing trip hazard. Electrical work requires a R-11 license to perform the

work. Respondent has a CR-37 license for plumbing only.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Ceiling canned lights not aligned

Investigator’s Observation: This complaint is verified. Respondent shall correct by appropriate means. Electrical work requires a R-11 license to perform the work. Respondent has a CR-37 license for plumbing only.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - No fire rock wall or insulation

Investigator’s Observation: This complaint is verified. Respondent shall correct by appropriate means. A R-10 license is required to perform drywall work. Respondent has a CR-37 license for plumbing only.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - They cut into the framing of the kitchen door & don't know why

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means. Door trim cut for unknown reasons and not fixed or replaced.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - The texture of ceiling & around doors is poor & don't match the original texture

Investigator’s Observation: This complaint is verified. Respondent shall correct by appropriate means. A R-10 license is required to perform drywall work. Respondent has a CR-37 license for plumbing only.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 8 - Several electrical outlet / boxes were covered up with a floor plate only & not sure they were capped off properly.

Investigator’s Observation: This complaint is verified. Respondent shall correct by appropriate means. Electrical work requires a R-11 license to perform the work. Respondent has a CR-37 license for plumbing only.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - Framing floor boards were regular 2x4 plywood instead of treated wood.

Investigator’s Observation: This complaint item is unverified, The bottom plate had the markings of treated lumber. Noted Respondent is out of scope. Framing carpentry requires a R-7 license.

Governing Rule: NA

Please direct all questions regarding this Directive to the undersigned Investigator.

10. Respondent did not correct the items listed in the Directive by December 1, 2020.

11. On December 22, 2020, Investigator Thomas conducted a compliance job-site inspection. Investigator Thomas learned that the items listed in the Directive were corrected by a different contractor after the deadline for compliance with the Directive had expired.

12. On December 28, 2020, the Registrar issued a Citation that contained allegations that Respondent may have violated A.A.C. Rule 4-9-108(b) and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(12), (16), and (22); and Ariz. Rev. Stat. section 32-1158. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

13. Respondent filed a timely appeal to the Citation.

14. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

15. At hearing, Ms. Anderson testified on behalf of herself. Ms. Hall testified on behalf of Respondent. Investigator Thomas testified regarding his investigation of the complaint and the issuance of the Directive.

16. Investigator Thomas testified to the effect that he substantiated complaint item 1 because the studor vent was visible and placed at eye-level. Investigator Thomas stated that the vent was placed at an upper cabinet height. Investigator Thomas found that Respondent performed electrical and drywall work that was outside the scope of its CR-37 plumbing license.

17. Investigator Thomas stated that he should not have substantiated complaint item 6 because the damage was caused prior to Respondent installing the backsplash.

18. Ms. Anderson asserted that Respondent performed poor work under the kitchen remodeling contract. Ms. Anderson asserted that she did not agree to have the vent placed at eye-level.

19. Ms. Hall testified that Ms. Anderson agreed to have the vent placed at eye-level and that Ms. Anderson stated that she would cover the vent with copper.

Ms. Hall stated that Ms. Anderson was aware that Respondent was not a drywall contractor. Ms. Hall stated that she did not understand exactly what she was required to perform under the Directive.

20. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on April 15, 2021. Respondent’s license record shows that its licensed was issued on June 6, 2019 and that there is only one open complaint against Respondent’s license. Respondent’s license has never been disciplined by the Registrar.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence does not show that Respondent failed to perform the work described in complaint item 1 in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(b).

6. The preponderance of the evidence shows that the issues found

by Investigator Thomas in complaint items 2, 4, 5, 7, and 8 demonstrate that Respondent failed to perform work in compliance with professional industry standards in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(b).

7. 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).

8. The undisputed evidence established that the contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A).

9. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).

10. The preponderance of the evidence shows that Respondent performed work outside the scope of its license, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 324711 held by Dirty Girl Plumbing, Inc., for three days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that 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)(7), 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 forty days from the date of that certification.

Done this day, April 15, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors