ALJDEC decisions subject to certification as final

2021A-02553-CHC-ROC · Registrar of Contractors · 2021-10-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen M. Good,

COMPLAINANT

Matthew A. Schultz

DBA: American Electrical Pro,

License No. ROC 323853,

RESPONDENT

No. 2021A-02553-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 13, 2021

APPEARANCES: Complainant Karen Good appeared on her own behalf. Fred Nottage appeared as a witness for Complainant. Matthew Schultz appeared on behalf of Respondent American Electrical Pro. Investigator Cliff Corlett appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Matthew A. Schultz, doing business as American Electrical Pro (“Respondent”), is the holder of License No. 323853 issued by the Arizona Registrar of Contractors (“Registrar”). Matthew A. Schultz is Respondent’s qualifying party.

In or about April 2021, Karen Good (“Complainant”) contracted with Respondent for Respondent to perform electrical work for the remodel of Complainant’s home.

On or about June 7, 2021, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.

The Registrar assigned the Complaint to Investigator Cliff Corlett. After a June 16, 2021 jobsite inspection, Investigator Corlett 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 or before Aug 12, 2021.

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

Compliance Item: 3 - He abandoned the job in April, after turning off ALL our electrical on the west side of home.

Investigator’s Observation: Respondent should properly complete all contracted electrical work or otherwise resolve this dispute.

AZ statutes require that the Respondent must be allowed reasonable access to correct any workmanship deficiencies. The electrical portion of this remodel was not complete as of 6/16/21.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 4 - He left exposed wires open wires and hot wires exposed many of my family members continue to get shocked.

Investigator’s Observation: Respondent should properly complete all contracted electrical work or otherwise resolve this dispute.

AZ statutes require that the Respondent must be allowed reasonable access to correct any workmanship deficiencies. The electrical portion of this remodel was not complete as of 6/16/21.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 5 - He conducted very poor work - and he failed to complete work

Investigator’s Observation: Respondent should properly complete all contracted electrical work or otherwise resolve this dispute.

AZ statutes require that the Respondent must be allowed reasonable access to correct any workmanship deficiencies. The electrical portion of this remodel was not complete as of 6/16/21.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 7 - His contract is missing how to file a complaint.

His contract is missing start and end dates.

His contract is missing scope of work, we provided him drawings and he continually loses them.

Investigator’s Observation: Respondent will be advised of his contract deficiencies by separate agency Warning Letters.

Compliance Item: 10 - We have been without lights and electrical on the west side of our home covering approx. 1200 sq. feet for 2 1/2 months, he continually put us off and told us to buy battery-operated lights for the bathroom.

Investigator’s Observation: Respondent should properly complete all contracted electrical work or otherwise resolve this dispute.

AZ statutes require that the Respondent must be allowed reasonable access to correct any workmanship deficiencies. The electrical portion of this remodel was not complete as of 6/16/21.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Compliance Item: 11 - he failed to deliver his contractual obligations

Investigator’s Observation: See# 5

Compliance Item: 12 - His wires have shocked our entire family

Investigator’s Observation: See # 4

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Contractor working without a Permit

Investigator’s Observation: A licensed contractor should not begin a project that requires a permit until that permit is in place regardless of who is supposed to obtain the permit. The Respondents contract does not indicate that he is providing the permit. The homeowner is the owner/builder in this project and the Registrar considers an owner/builder to have the same knowledge as a licensed General Contractor and should have known a permit and inspections were required for this project. With all that said the ROC would have required the Respondent to acquire the needed permit(s) and city inspections. Since the owner has obtained a city electrical permit (21-4134) and inspections that requirement is moot.

NO CONTRACTOR ACTIION RREQUIRED.

Compliance Item: 2 - Contract specifies contractor to bring electrical to code – he should have filed for a permit, we discovered he worked without a permit

Investigator’s Observation: City electrical inspector did not issue any correction notice for the electrical work.

NO CONTRACTOR ACTION REQUIRED.

Compliance Item: 6 - he was working without a permit

Investigator’s Observation: See # 1.

Compliance Item: 8 - He damages our home, holes in walls and ceiling and leaves the holes and mess

Investigator’s Observation: Rewiring, re-plumbing and or HVAC work can

cause extensive damage to existing drywall and or stucco to obtain access to perform new work. Respondent’s contract does not contain any language about repairing access damage.

NO CONTRACTOR ACTION REQUIRED.

Compliance Item: 9 - He is verbally abusive toward homeowner. Cusses, and swears and threatens the owner constantly

Investigator’s Observation: Not a workmanship issue the ROC can address.

All errors in original.

On July 13, 2021, Investigator Corlett issued a Warning Letter to Respondent because it appeared that Respondent was not in compliance with Registrar requirements, as Respondent’s contract does not contain all nine required elements of a contract.

On August 11, 2021, Investigator Corlett contacted Complainant by email to inquire as to whether Respondent had completed the required work. Complainant responded that no work was performed and no resolution had been reached.

On August 16, 2021, Investigator Corlett issued a letter to the parties containing his findings that Respondent was not in compliance with the Written Directive.

On August 17, 2021, Investigator Corlett received an email from Respondent alleging that Complainant had denied access for the performance of the work.

Investigator Corlett forwarded the Complaint to the Registrar’s Legal Department. 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), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Corlett testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Corlett testified that Complainant was the owner/builder and that a building permit should have been obtained prior to Respondent commencing work. Investigator Corlett testified that Complainant advised him that she would obtain the permit, and he advised Complainant that the city inspector would need to inspect the work to ascertain whether there were any electrical code violations.

Investigator Corlett testified that he waited until July 13, 2021, to issue the Written Directive because he wanted to wait until after the permit was issued and the city inspection was conducted. Investigator Corlett testified that the city inspector did not issue a correction notice. Therefore, the Written Directive instructed Respondent to complete the project per the contract terms.

Investigator Corlett testified that he issued a Warning Letter to Respondent because Respondent’s contract did not contain the jobsite address, Respondent’s address, or information regarding Complainant’s right to file a complaint with the Registrar.

At hearing, Complainant questioned Investigator Corlett regarding Respondent’s work. Investigator Corlett testified that Respondent’s work should have been inspected by the city upon completion of the rough electrical, and that Complainant, as owner/builder, was responsible for arranging for that inspection. Investigator Corlett explained that he ascertained that Complainant was the owner/builder from a conversation during the jobsite inspection, wherein Complainant indicated that she hired and directed the individuals working on the project, and that Complainant was “in control” of the project. However, Respondent should have confirmed that a permit was in place prior to commencing work. Investigator Corlett testified that Mr. Schultz told him that he believed a permit was in place, but later discovered that the permit was only for gas lines. Investigator Corlett opined that both parties erred regarding the permit.

When questioned by Mr. Schultz, Investigator Corlett testified that had the city required corrections, a correction notice would have been issued and those corrections would have been incorporated into the Written Directive. However, there was “nothing incorrect, just incomplete.”

Complainant testified that the remodel of her home was to be performed in two phases encompassed by the east and west sides of the home. Complainant testified that she had hired a general contractor for the east side phase, however did not “re-engage” the general contractor for the west side phase. Complainant testified that Respondent left the home in a dangerous condition and that her children “practically got electrocuted.” Complainant also testified that the city inspector advised that there was a great deal of work to complete, but did not provide any written documentation. Complainant asserted that Respondent’s work was unprofessional and that Respondent abandoned the project and refused to come back to the jobsite. Complainant testified that she provided dates of availability for Respondent to return to comply with the Written Directive, however, Respondent contacted Complainant after the deadline. Complainant further testified that Respondent “turned them into the city because they didn’t have a permit.”

Complainant’s husband, Fred Nottage, testified that Respondent left live wires exposed and protruding from the wall, and that there was a fire risk due to Respondent leaving a “cut off” wire lying in insulation in the attic and another wire in the pantry in the drywall. Mr. Nottage testified that the city inspector advised them that Respondent’s work was “poor.” Mr. Nottage acknowledged that it was “ignorance on their part” regarding the lack of permit. Mr. Nottage acknowledged that the city inspector did not provide a list of corrections.

Mr. Schultz testified that the rough in work was completed and that he wanted it inspected by the city. Mr. Schultz also testified that Complainant told him the previous general contractor took the permit with him, and then Complainant informed him that there was no permit. Mr. Schultz testified that he went to the city to report Complainant because he believed the project should have a permit given the scope of the project. Mr. Schultz testified that he “turned them in” to the city for not having a permit, and once the city inspected the project, the electrical work passed inspection. Mr. Schultz testified that the rough in was entirely completed by the time of that inspection. Mr. Schultz asserted that Respondent did not abandon the project, and that Complainant would not allow Respondent in the home to comply with the Written Directive notwithstanding that he requested access on July 23, 2021, and July 27, 2021, both dates within the designated time frame of the Written Directive. Mr. Schultz asserted that Complainant “became evil” after he “made her pull a permit.”

Administrative notice is taken of Respondent’s prior License record on October 20, 2021. Such prior License record reflects that Respondent’s License No. 323853 was first issued on March 20, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, no disciplined complaints, and no resolved/settled/withdrawn complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent failed to complete the project, even after the permit was obtained and the rough in passed inspection. Therefore, Complainant established that Respondent abandoned the project without legal excuse in violation of A.R.S. § 32-1154(A)(1).

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).

The evidence established that Respondent’s written contract for the project lacked the statutorily required minimum elements of a contract. 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 did not complete the corrective work following the Written 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 suspend Respondent’s License No. 32385 for a period of three (3) days.

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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, October 25, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000