ALJDEC decisions subject to certification as final

2022A-00069-CHC-ROC · Registrar of Contractors · 2022-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William De La Torre,

COMPLAINANT

Athena's Plumbing Co LLC

DBA: APC Plumbing,

License No. ROC 274059,

RESPONDENT

No. 2022A-00069-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 22, 2022

APPEARANCES: Complainant William De La Torre appeared on his own behalf. Brandon Shigley, Owner and Qualifying Party, appeared on behalf of Respondent Athena’s Plumbing Co LLC, doing business as APC Plumbing.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Athena’s Plumbing Co LLC, doing business as APC Plumbing (Respondent) is the holder of License No. 274059 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 3, 2022, William De La Torre (Complainant) signed a contract with Respondent for the replacement of a kitchen faucet.

After the installation was completed, Complainant noticed the countertop was damaged, which resulted in a leak under the sink.

On or about January 4, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm 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 March 4, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #2: Kitchen countertop damaged, caused by removal of old faucet.

Investigators Observation: A plumbing technician of the respondent was dispatched to the home of the complainant for work regarding a garbage disposal. The garbage disposal work was never performed however while on site the homeowner hired the respondent to replace the old kitchen faucet with a new homeowner supplied faucet. The respondent charged a fee and was paid for this work. Based on the observation of the old faucet that was removed a pretty good force was used to remove the old faucet as the metal cover plate was torn in half and the base of the faucet appears to have been calcified in place by water deposits. The stone kitchen counter top is cracked at the back of the sink following the three holes that appear to have been drilled at the time of the original installation of the counter top. The crack is about 10 to 12 inches in length and a couple inches back from the rear edge of the sink opening as it travels through the three holes. The stone top appears to have been forced down and broken with some kind of prying action to remove the old faucet. I believe the top was broken during the removal of the old faucet based on my observation of the current condition of the top. I was also shown and observed a photo taken by the home inspector a few months earlier prior to the sale of the home and its condition at that time. A photo was taken of the prior kitchen faucet on place at that time. In that photo it is difficult to determine the condition of the stone top. No issue regarding a cracked top was documented in that report. I was also provided a photo taken by the homeowner that he states was taken during the removal of the old faucet by the plumbing tech. When this photo was taken it clearly shows the old cover plate still in place in one piece and not removed yet and the photo shows no crack in the top prior to the removal of the old cover plate and faucet. This photo is part of the case file and will be provided to the respondent.

*Correct damage (crack) in stone kitchen counter top at the location of the kitchen faucet by appropriate means.

Governing Rule: 32-1154(A)(3) poor work – A contractor shall perform all work in a professional and workmanlike manner.

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

Investigator Grimm testified as to his observations of the project at the time of the jobsite inspection.

Complainant testified that photographs and the home inspection report from when he recently purchased the home established that the countertop was not damaged prior to Respondent’s work on the faucet. Complainant believed that Respondent forcibly removed the existing faucet that caused the crack to the countertop. Complainant indicated that he had been advised the entire countertop would need to be replaced and he was uncertain how much that would cost.

Mr. Shigley testified that, while he was uncertain that Respondent actually caused the damage to the countertop, he was willing to accept that responsibility. However, Mr. Shigley asserted that he offered Complainant a monetary settlement, but he had refused the offer. Mr. Shigley stated that he believed Complainant was engaging in extortion and was executing a “money grab.”

Administrative notice is taken of Respondent’s prior License record on August 3, 2022. Such prior License record reflects that Respondent’s License No. 274059 was first issued on July 28, 2011, and is active. 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’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.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Respondent offered a financial settlement, nothing requires Complainant to accept such an offer. 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. 274059 for a period of one day.

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, August 3, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary