ALJDEC decisions subject to certification as final

2021A-00571-CHC-ROC · Registrar of Contractors · 2021-07-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jennifer Zahratka,

COMPLAINANT

Doug And Charles Plumbing And Backflow Services LLC,

License No. ROC 297057,

RESPONDENT

No. 2021A-00571-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 1, 2021

APPEARANCES: Complainant Jennifer Zahratka appeared on her own behalf. Respondent Doug And Charles Plumbing And Backflow Services LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Doug And Charles Plumbing And Backflow Services LLC (Respondent) is the holder of License No. 297057 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 23, 2020, Jennifer Zahratka (Complainant) contacted her home warranty company regarding plumbing issues at her property. The home warranty company dispatched Respondent to the property.

Complainant was not present when Respondent performed the work on the property. Complainant received a call from Respondent indicating that it was replacing the kitchen faucet, like with like, and Complainant needed to pay $246.58 at that time. Complainant provided her credit card information to Respondent over the phone to pay the amount due.

After the work was purportedly completed by Respondent, Complainant spoke to the individual who was present when Respondent was at the property. According to that individual, Respondent was not there for any considerable length of time, less than 15 minutes, and did not do any significant work.

Complainant was provided with a handwritten invoice from Respondent with “Doug & Charlie Plumbing” written at the top, listing the total cost of $246.58, and providing as follows:

Faucet leaking internally

Basket strainer leaking

Supply line to faucet leaking

Tightened all connections under the sink

1. Replaced faucet

2. Replaced basket strainer

3. Replaced supply line

On or about February 8, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Steve Philpott. After a jobsite inspection, Investigator Philpott 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 April 9, 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:

Compliance Item: 1 - Doug And Charles Plumbing And Backflow Services LLC was dispatched to my condo for a plumbing repair through my home warrantee company. (Doug) He came to the unit on Wednesday, June 23 to complete the repair. He called me the same day of the dispatch to my condo to tell me the repair was completed and I owed him for the cost of the faucet he replaced. I immediately asked him why he made a repair with our my approval and he, in short, told me that was how the process worked and to seek reimbursement through the home warrantee company. So, I naively paid him. I learned later that day that he did not replace the faucet, much less make any repairs, and was at the condo for a total of about 15 minutes per a statement from my tenant. I also then went to the condo and it was obvious no repairs were made or any faucet replaced. I took photos and submitted them to the home warranty company, including photos from the home inspection that was completed in late January, less than 5 month prior, showing the exact same faucet in the kitchen. The home warranty company told me Doug Crabbe billed them for 5 hours of labor. The warranty company removed this plumbing company from their list of approved plumbing contracts but failed to do anything further. I filled a report with Officer Goyles with the Flagstaff police on Friday, July 17, who suggested I submit a complaint to you. The home warranty company also gave me Douglass Crabbe’s email to rectify the situation with him, but he refused to acknowledge his scam. He did provide me a POST-DATED receipt for my payment. Supporting documents to attest to this are attached. The home warrantee company refuses to deal with me about the situation as I am a third party. I do not permanently resident at the condo due to Covid-19, by my tenant as present during the repair. Douglas Crabbe knew this and took advantage of me, my tenant and the situation to his financial gain and the repair is not done.

Investigator’s Observation: This complaint item is verified. The invoice indicates that the faucet was replaced along with the basket strainer and supply lines. Based on my observations, It appears the faucet, basket strainer and supply lines were not replaced. The faucet has wear marks and lime build up that normally would not appear in the time frame between when the work was allegedly completed and the time of this inspection. Respondent shall correct by appropriate means.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Philpott 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)(1); 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. § 32-1124(B); A.R.S. § 32-1154(A)(14); and A.R.S. § 32-1154(A)(22).

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 1:00 p.m. on July 1, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

The hearing was held on July 1, 2021, via Google Meet. Complainant testified on her own behalf. Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Philpott testified that, based on his observations, the faucet and basket strainer were not replaced at the time of Respondent’s purported work on the project. Investigator Philpott also noted that Complainant showed him a photograph of the faucet from when she purchased the property and the scratch in the photo was the same as the scratch on the existing faucet.

Complainant testified that she did not believe Respondent performed any work on the project when at the property. Complainant stated that according to the individual present, Respondent was only at the location for about 15 minutes. Complainant indicated she was able to get the $75 service charge from the home warranty company reversed.

Administrative notice is taken of Respondent’s prior License record on July 9, 2021. Such prior License record reflects that Respondent’s License No. 297057 was first issued on April 1, 2015, was renewed through April 30, 2021, and has been suspended for non-renewal since May 3, 2021. Such prior License record also reflects that there were no other open or 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 agreed to perform work on Complainant’s project and then failed to perform the work. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B).

The evidence established that the handwritten invoice identified Respondent as “Doug & Charlie Plumbing” rather than “Doug And Charles Plumbing And Backflow Services LLC” and did not include Respondent’s ROC License number. Accordingly, Complainant established that Respondent failed to comply with the Registrar’s statutes in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1124(B) and failed to operate under the name of the licensee in violation of A.R.S. § 32-1154(A)(14).

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 her out of pocket costs for the work Respondent failed to perform was $246.58.

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. 297057 for a period of ten days.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $246.58 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.

-54864001

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-137160-45720000Done this day, July 16, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000