ALJDEC decisions subject to certification as final

2021A-03859-CHC-ROC · Registrar of Contractors · 2022-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeffrey R. Harris,

COMPLAINANT

Rooter Hero Phoenix Inc.

DBA: Rooter Hero Plumbing,

License No. ROC 275291,

RESPONDENT

No. 2021A-03859-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2022

APPEARANCES: Complainant Jeffrey R. Harris appeared on his own behalf. Clayton Borrego, Operations Manager for Arizona, appeared on behalf of Respondent Rooter Hero Phoenix Inc., doing business as Rooter Hero Plumbing.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Rooter Hero Phoenix Inc., doing business as Rooter Hero Plumbing (Respondent) is the holder of License No. 275291 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 5, 2021, Jeffrey R. Harris (Complainant) entered into a contract with Respondent for, among other things, excavation and replacement of various lines throughout the house.

On or about August 2, 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 Doug Barrett. After a jobsite inspection, Investigator Barrett 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 10-04-2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Kitchen sink drain not completed.

Investigator’s Observation: Verified. I observed a section of wall that had been opened up with new pipe installed. The wall has not been repaired or closed up. Contractor should make necessary repairs by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 3 - Downstairs hall bath wall behind toilet open with exposed plumbing.

Investigator’s Observation: Verified. I observed an unfinished section of wall behind the toilet where plumbing repairs were made and a hole was left open. Contractor should make necessary repairs by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Compliance Item: 5 - Master bath toilet removed and wall opened up behind toilet leaving exposed plumbing. Toilet not installed.

Investigator’s Observation: Verified. I observed a removed toilet and I observed an unfinished section of wall behind the toilet where plumbing repairs were made and a hole was left open. Contractor should make necessary repairs by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Barrett 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)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Barrett testified as to his observations of the project. Investigator Barrett noted that Complainant’s complaint regarding the trench being left open could not be verified because the trenches were filled with concrete at the time of the inspection. Investigator Barrett stated that Complainant had hired someone else to fill the trench prior to the inspection.

Complainant testified as to the issues he raised in his complaint. Complainant referenced the trench and indicated he had hired someone else to fill the trench, which posed a safety hazard.

Mr. Borrego acknowledged that there were workmanship issues with respect to Complainant’s project and admitted that the work was not corrected by the deadline in the written directive.

Administrative notice is taken of Respondent’s prior License record on January 20, 2022. Such prior License record reflects that Respondent’s License No. 275291 was first issued on October 8, 2011, and was active. Such prior License record also reflects that there were two 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’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 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 suspend Respondent’s License No. 275291 for a period of five 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.

-54864001

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-137160-45720000Done this day, January 20, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000