ALJDEC decisions subject to certification as final

2021A-03342-CHC-ROC · Registrar of Contractors · 2021-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Advanced Laser Clinics,

COMPLAINANT

Desert Mountain Electric LLC

License No. ROC 285412,

RESPONDENT

No. 2021A-03342-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 5, 2021

APPEARANCES: Kimberly Johnson, Owner, appeared on behalf of Complainant Advanced Laser Clinics. Jay Clark, Owner and Qualifying Party, appeared on behalf of Respondent Desert Mountain Electric LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Desert Mountain Electric LLC (Respondent) is the holder of License No. 285412 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 17, 2021, Advanced Laser Clinics (Complainant) entered into an agreement with Respondent for the installation of a new electrical outlet. Originally, the work was to be done as a barter for services from Complainant, but Respondent decided to forego the services and be paid directly.

On or about July 19, 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 Daniel Edwards.

After a jobsite inspection, Investigator Edwards 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 September 4, 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 reasons1, 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: 2 - Work agreed upon was incorrectly installed and left unfinished

Investigator’s Observation: The outlet on the northern office suite of the property was observed to be incomplete. Additionally, it has been verified that installation of this new outlet required a permit and is subject to permitting and inspection via the local building authority, in this case the City of Glendale Building Safety Department. Respondent shall finish project by appropriate means and acquire all necessary permits for this work, and address any and all items outlined by the building official in order to achieve final approval for this work.

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

On or about August 5, 2021, Investigator Edwards issued a Warning Letter to Respondent based on Respondent’s failure to obtain a building permit prior to performing the work on the project in violation of A.R.S. § 32-1154(A)(2).

Following the issuance of the written directive, Respondent did not complete the corrective work. After the deadline in the directive expired, Investigator Edwards 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; and A.R.S. § 32-1154(A)(22).

Investigator Edwards testified that he did not check the outlet to determine if it was working because it was a specialty outlet, the equipment that would use the outlet was expensive, and he did not want to damage the equipment testing the outlet.

Ms. Johnson testified that Respondent originally offered to install the outlet in exchange for laser tattoo removal for Mr. Clark’s girlfriend. After Mr. Clark decided the laser tattoo removal was not needed, he told Ms. Johnson that he would install the outlet for $250.00, but later attempted to charge Complainant more for the work. Ms. Johnson stated that the purpose of the new outlet was to allow her to move a specific piece of equipment between rooms. Ms. Johnson noted that after Respondent’s employee installed the outlet and plugged it in, it “popped everything in the office.” Ms. Johnson maintained that she was unwilling to use the outlet because she did not want to damage the equipment.

Mr. Clark testified that the wiring was oversized for the outlet in that the wiring was 30 amp and the machine was 20 amp. Mr. Clark asserted that he was willing to check the outlet and plug in the equipment because his insurance would cover any damage to the machine. Mr. Clark acknowledged that Respondent did not obtain permits for the work prior to installing the new outlet and admitted that, had an inspection related to a permit been conducted, the parties would know if the outlet worked or not.

Administrative notice is taken of Respondent’s prior License record on November 23, 2021. Such prior License record reflects that Respondent’s License No. 285412 was first issued on June 3, 2013, and is active. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in discipline 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 Glendale. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(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 did not 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 suspend Respondent’s License No. 285412 for a period of three 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)(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, November 23, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000