ALJDEC decisions subject to certification as final

2022A-00084-CHC-ROC · Registrar of Contractors · 2023-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Teresa M Morgan,

COMPLAINANT

Service Plumbing Co. LLC

License No. ROC 154532,

RESPONDENT

No. 2022A-00084-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 3, 2023

APPEARANCES: Complainant Teresa M. Morgan appeared via Google Meet on her own behalf. Stephen Gilbert appeared via Google Meet on behalf of Respondent Service Plumbing Co LLC. Registrar of Contractors Investigator Steven Avila appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

FINDINGS OF FACT

Service Plumbing Co. LLC. (Respondent) is the holder of License No. 154532 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 2, 2021, Teresa M. Morgan (Complainant) agreed to have Respondent install baseboards and paint her business. The total cost was to be $1,955.00

On or about January 4, 2022, the Registrar received a Complaint containing 7 items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Steven Avila. The jobsite inspection was performed on February 15, 2022.

Investigator Avila then issued a written directive on or about February 23, 2022, 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 11, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Plumber damaged kitchen backsplash tile; said homeowner is responsible for damages

Investigator’s Observation: At the time of the inspection the backsplash had contained cracking that extended beyond the escutcheon cover that was not present prior to the faucet installation. Allegation is verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Plumber damaged brand new faucet

Investigator’s Observation: At the time of the inspection the decorative nuts on the faucet appeared to have been tightened using the incorrect tool resulting in damage to the finish. Allegation is verified.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original)

On March 24, 2022, Investigator Avila conducted a Compliance Jobsite Inspection. In his notes regarding the same, Investigator Avila found the following:

Compliance Findings:

Complainant has stated that there has been no interaction with the respondent since prior to jobsite inspection.

Compliance Item: 1 - Plumber damaged kitchen backsplash tile; said homeowner is responsible for damages.

Investigator’s Observation: No change from jobsite inspection

Compliance Item: 2 - Plumber damaged brand new faucet

Investigator’s Observation: No change from jobsite inspection.

On March 28, 2022, 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).

On or about April 12, 2022, Respondent timely e-mailed an Answer to the Registrar.

On or about April 27, 2022, a Notice of Hearing was issued setting a hearing on May 27, 2022 at the Office of Administrative Hearings, an independent state agency.

After several continuances the hearing was held on January 3, 2023.

At hearing, Investigator Avila testified as to the Registrar’s involvement and the above timeline.

Investigator Avila testified that on January 13, 2022, he placed a telephone call to Respondent to discuss the Complaint, but never received a call back. In addition, Investigator Avila also testified that Respondent failed to appear at the Jobsite Inspection.

Investigator Avila testified that as to the Complaint items, the tile backsplash was damaged during the installation of the faucet, and referenced the pictures from the Jobsite Inspection. Further, Investigator Avila testified that the nuts on the faucet were scratched.

Finally, Investigator Avila testified that there was no change to the project when he conducted the Compliance Jobsite Inspection.

Teresa Morgan testified on her own behalf. She testified that she had hired Respondent to perform three projects, and two of them were not done correctly.

Mrs. Morgan also testified that Mr. Gilbert informed her that she would be responsible for the damage to the backsplash. Mrs. Morgan also testified as to the damage to the faucet.

In addition, Mrs. Morgan testified that while she paid Mr. Gilbert via credit card based upon his promise to come and repair the items, she later canceled those charge when Mr. Gilbert failed to come back to make the repairs.

Stephen Gilbert testified on behalf of Respondent. He testified that his dad suffered an accident around December 16, 2021, and was not able to check his e-mail and thus did not receive any correspondence from the Registrar. Further, the P.O. Box the company used was no longer in use. However, once he found out about the Complaint, he contacted the Registrar, and believed this was in March 2022.

As to the backsplash, Mr. Gilbert testified that when he took the old faucet off of the wall, the previous holes were too small, so he would need chisel the tile to make enough space. Because of this, he informed Mrs. Morgan of the same, and that she agreed to have him continue with the work with the understanding that she would be responsible for any damage.

As to the faucet, Mr. Gilbert testified that it was installed correctly and operational. However, he acknowledged the damage to the nut, and was going to replace the scratched one with a newer nut.

In addition, Mr. Gilbert testified that towards the end of December 2021, he and his dad went to Complainant’s home to demand payment and was told by Complainant’s husband to get off of the property and to never come back. Mr. Gilbert testified it was because of this that he believed he was never given the proper opportunity to make the repairs.

Administrative notice is taken of Respondent’s prior License record on January 17, 2022. Such prior License record reflects that Respondent’s License No. 154532 was first issued on April 21, 2000, and reflects that there was one open complaint, namely the present complaint.

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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The backsplash was damaged during the installation, and there were scratches on the faucet nuts. There was no persuasive evidence presented by Mr. Gilbert that Mrs. Morgan somehow waived any deficiencies in workmanship while installing the faucet. 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 Respondent failed to complete the corrective work following the Directive being issued. While the tribunal is sympathetic to his father’s injuries from his accident, it was still the Respondent’s responsibility to check e-mail, check voicemail, and update its mailing address with the Registrar. Thus, there was no valid legal excuse for not following the Directive. 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. 154532 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)(7), 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 30 days from the date of that certification.

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-137160-45720000Done this day, January 4, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Service Plumbing Co. LLC

[email redacted]

Teresa M Morgan

[email redacted]

By OAH Staff

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-137160-45720000