ALJDEC decisions subject to certification as final

2020A-05521-CHC-ROC · Registrar of Contractors · 2021-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Andrea White,

COMPLAINANT

Bath Planet of Tucson LLC

License No. ROC 305199,

RESPONDENT

No. 2020A-05521-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2021

APPEARANCES: Complainant Andrea White appeared on her own behalf. Darren Weathersby, Owner and Qualifying Party, appeared on behalf of Respondent Bath Planet of Tucson LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Bath Planet of Tucson LLC (Respondent) is the holder of License No. 305199 issued by the Arizona Registrar of Contractors (Registrar or ROC).

On or about August 24, 2020, Andrea White (Complainant) entered into a contract with Respondent for a bathroom remodel. The contract identified Respondent as “BathPlanet” and did not include Respondent’s ROC License number, Respondent’s address, an estimated date of completion, or an advisement that Complainant had a right to file a complaint with the Registrar.

On or about November 23, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith.

On or about December 8, 2020, after a jobsite inspection, Investigator Smith issued a written directive to Respondent that provided as follows:

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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 7, 2021.

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:

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.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

. . . .

Complaint Item 1: “Electrical may not have been done properly as no electrician was hired and now owner is stating they don’t do electrical, although his workers removed a wall and moved 2 outlets to different walls which included rewiring and looping outlets and they installed a box in the corner where they spliced the wires together”

Investigator’s Observation: Verified:

Electrical work performed by the respondent included:

Removing two electrical boxes from the original “pony” wall.

Re-routing electrical wires inside the walls and ceiling.

Relocating one electrical box with a receptacle to one wall of the bathroom.

Relocating one electrical box with two switches to the opposite wall of the bathroom.

Raising the height of two electrical boxes near the door to accommodate the height of the sidesplash.

One double box with two switches.

One single box with a receptacle.

The electrical work was performed without a permit.

The respondent’s CR-61 license requires that all electrical work be subcontracted to an appropriately licensed contractor.

. . . .

Complaint Item 2: “Outlets are too close to counter- unable to fasten outlet and cover. Owner refuses to fix”

Investigator’s Observation: Verified:

The electrical box, near the door, for the receptacle is broken. The receptacle is not secure in the box. The receptacle is hanging out of the box.

. . . .

Following the issuance of the written directive, Respondent did not obtain a permit or arrange for any corrective work to be done by a properly licensed contractor. After the deadline in the directive expired, Investigator Smith 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)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(14); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

Investigator Smith testified as to the Registrar’s involvement in this matter. Investigator Smith noted that the contract listed Respondent as “BathPlanet” while Respondent is licensed under the name “Bath Planet of Tucson LLC”.

Complainant testified that Respondent removed a wall in the bathroom and moved the wiring that had been located in that way to the adjoining wall and ran the wiring through the ceiling to place an outlet on the opposite wall. Complainant indicated that the outlet by the vanity needed to be moved up because the side splash was too tall and Respondent initially cut off the bottom of the outlet cover to make it fit. Complainant stated that when she raised this issue with Respondent, Respondent denied having performed any electrical work.

Mr. Weathersby testified that Respondent did not take down the wall in question and did not relocate the wiring. Mr. Weathersby maintained that the wall was removed and the outlets were installed prior to Respondent’s arrival on the jobsite. Mr. Weathersby pointed out that the contract did not include any reference to moving the electrical. Mr. Weathersby acknowledged that one of Respondent’s employees may have moved the outlet by the vanity as a courtesy, but that was not within the scope of the contract. Further, Mr. Weathersby argued that the threads in electrical boxes often wear out, so it was not the fault of his employees.

Administrative notice is taken of Respondent’s prior License record on April 19, 2021. Such prior License record reflects that Respondent’s License No. 305199 was first issued on May 6, 2016, and is active. Such prior License record also reflects that there were two 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 performed work on the project without required permits having been issued by the City of Tucson. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(2)(b).

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(A) and (B).

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, Complainant 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 identified itself as “BathPlanet” on the contract when it was licensed as “Bath Planet of Tucson LLC”. Therefore, Complainant established that Respondent acted in a name other than that set forth on its license in violation A.R.S. § 32-1154(A)(14).

The evidence established that Respondent contracted to perform electrical work that it was not authorized to perform under its license. Therefore, Complainant established that Respondent knowingly contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 305199.

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, April 19, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000