ALJDEC - Licensing
2022A-11738-CHC-ROC · Registrar of Contractors · 2023-08-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Hadi Alkadi,
COMPLAINANT,
v.
Rooter Tucson LLC
dba Mr. Rooter Tucson,
License No. ROC 324935,
RESPONDENT.
No. 2022A-11738-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 31, 2023 and July 31, 2023; record held open until August 7, 2023.
APPEARANCES: Hadi Alkadi represented herself. Attorney Daryl R. Wilson represented Rooter Tucson LLC dba Mr. Rooter Tucson.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
___________________________________________________________________
Respondent was the holder of License No. 324935, Specialty Dual CR-37 Plumbing, issued by the Arizona Registrar of Contractors (Registrar, or ROC) in June 2019.
On or about December 19, 2022, the Registrar received Complainant’s Licensed Complaint Form (Complaint) indicating that Respondent had failed to obtain and provide to Complainant a permit before beginning work and had failed to provide drawings for Complainant to give to the property management. Complainant wrote that the work had started in February of 2022 and ended in March of 2022, and that the permit had not been requested until April 2022 but had never been obtained.
In February of 2022, Complainant contracted with Respondent for remodeling in a barbershop, to perform two projects: “First,” a “dirty arm” for a hair washing station tied to the toilet vent, tying in dirty water from hair washing station to the washer, and connecting hot and cold water lines to the laundry and hair washing station; and, “Second,” to install a ceiling commercial hot water system and connect the water supply to run hot/cold water to the fixtures. Respondent provided a 6-year manufacturer warranty and a 3-year labor warranty.
After receiving the Complaint, Registrar’s Investigator Arlo Houston conducted a jobsite inspection on January 25, 2023 and, thereafter, issued a Written Directive (Directive) verifying that the plumbing work had required a permit which had not been obtained. The Registrar set forth February 24, 2023 as the deadline for Respondent’s compliance with the Directive. An extension until March 13, 2023 was granted. Receiving no update, on March 14, 2023, Investigator Houston forwarded the Complaint for legal citation against Respondent.
The Registrar issued a Citation on March 17, 2023, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(2)(a); ARIZ. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).
Ariz. Rev. Stat. § 32-1154(A)(2)(a) includes among the grounds for suspension, revocation or other disciplinary action,
Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(12) includes among the grounds for disciplinary action a failure in any material respect to comply with this chapter.
Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”
On March 30, 2023, counsel for Respondent filed an Answer to the Citation, indicating that Respondent had hired a licensed engineer to prepare the drawings necessary to obtain the permit, and there had been issues with the engineer being allowed or having access to the premises. Further, Respondent noted that Complainant had not paid for the work performed.
The Registrar noticed the matter for hearing.
While there were efforts by the parties to resolve the matter informally, the matter was not resolved prior to the Directive deadline, or prior to the first or the second administrative hearing session. In March 2023, Complainant had opted to continue with the complaint/hearing process.
At hearing, licensed engineer Robert C. Kunkel testified that he had been contacted by Respondent in February 2023 to assess the situation and provide engineered drawings under a contract for $1,500.00. Mr. Kunkel noted that he had given the estimate, that he had wanted payment in advance, that he did not hear back from Respondent, and that he did not receive payment until March 14, 2023.
On March 14, 2023, at 4:39 p.m., Rob Martinez emailed Investigator Houston, stating “Invoice has been paid as the engineers [were] able to work with us, once this is complete we will finalize the work.”
Complainant emailed Investigator Houston on March 17, 2023, indicating that Mr. Martinez was “calling us nonstop” and that she had been avoiding his calls. Investigator Houston responded to Complainant that she could choose to keep working with Respondent or she could go forward with the Registrar’s Complaint process.
At hearing, Mr. Kunkel testified that a site visit was set for March 17, 2023; Mr. Kunkel had contacted Respondent’s Rob Martinez, who indicated the people were enroute, but then no one arrived and Mr. Kunkel left the shop after 45 minutes.
At hearing, Complainant reviewed her efforts to determine if the work had been completed, leaving keys in the lock box, and waiting for the work to be done. Complainant continued to attempt to follow up on the permit, which they needed for the landlord/property management, by going to the Respondent’s offices in April 2022 and speaking with “Cassandra” and by going to the City in May and/or June 2022. Complainant indicated that Cassandra told her Respondent was “working on” the permit; Complainant’s understanding was that Respondent was seeking a permit for the “First” portion of the work and not for the “Second” portion of the work.
Complainant stated that the shop has been open since July 2022 but is not fully operational as they had expected to be because one wall is still open and they are unable to use the washer and dryer.
At hearing, Complainant acknowledged that she has not made any payment to Respondent, stating that she had been calling Respondent about making payment.
At hearing, John Wakeham testified that, under an ownership change of the business, he had “recently” come to the new business as an employee, as the Director of Operations in Tucson; he indicated that Mr. Martinez was no longer with the company. He argued that, if a permit had been needed, they would have listed it on the invoice; however, Mr. Wakeham also stated that he had no personal involvement with the original contracts and work performed. Mr. Wakeham acknowledged that, typically, the installation of a water heater and hook up to water does need a permit. Mr. Wakeham further indicated that the recent efforts in 2023 to get a permit were done in their efforts to resolve the matter.
Mr. Wakeham acknowledged that the new company was subject to the claim but argued it is unfair to tag the new company with discipline for the prior violations of the former company. Respondent argued that they had made significant efforts to resolve the matter with an inspection by a licensed engineer and obtaining a permit so they could finish the project. Mr. Wakeham’s position was that Respondent wants an opportunity to complete the rest of the work.
Complainant argued that Respondent had not followed through on the project, that Respondent had been given enough time to do the work, and that Respondent had not cared enough about doing things correctly. In Closing, Complainant argued that Respondent should complete the work and Complainant should get damages.
Since the hearing session in July 2023, neither party has notified the Tribunal that the matter was resolved informally between the parties prior to the date of this decision.
Administrative notice is taken of Respondent’s record with the Registrar, which reflects that Respondent’s License No. 324935 was voluntarily cancelled on July 28, 2022. Two other cases had been settled in 2022, one on July 18, 2022 and one on August 1, 2022. Complainant’s case is the only open case remaining regarding License 324935.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.
In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).
A preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Black’s Law Dictionary 1373 (10th ed. 2014).
5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.
9. Regarding workmanship, Investigator Houston found workmanship contracting violation issues still existed on the barber shop project at the time of the January 2023 job site inspection. Following the issuance of the Directive mandating correction of those items by March 13, 2023, Investigator Houston determined that these same workmanship contracting violations remained uncorrected.
10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of: Ariz. Rev. Stat. § 32-1154(A)(2)(a) for departure from plans or specifications in any material respect prejudicial to another without consent to have the project completed in accordance with plans, specifications, and code; Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108 for failure to perform all work in a professional and workmanlike manner; and, in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.
RECOMMENDED ORDER
Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 324935 as follows: a one business-day suspension on the effective date of the Registrar’s Order in this matter.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, August 28, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Registrar
Registrar of Contractors
c/o Legal Department
[email redacted]
Arlo Houston
ROC Investigator
[email redacted]
Hadi Alkadi
[email redacted]
Daryl R. Wilson
GORDON REES SCULLY MANSUKHANI, LLP
[email redacted]
By: OAH Staff