ALJDEC - Licensing

2023A-05754-CHC-ROC · Registrar of Contractors · 2023-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elizabeth Soto,

COMPLAINANT

v.

Elite Rooter Phoenix Inc.

DBA: Elite Rooter

License No. ROC 316232,

RESPONDENT

No. 2023A-05754-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 12, 2023

APPEARANCES: Complainant Elizabeth Soto appeared on her own behalf via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

Elite Rooter Phoenix, Inc. (Respondent) is the holder of License No. 316232 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 15, 2022 Elizabeth Soto (Complainant) agreed to have Respondent remove and install a septic tank at her residence. The total cost was $22,000.00.

On or about May 18, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on June 29, 2023.

Investigator Grimm then issued a written directive on or about July 5, 2023, 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 July 24, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Contractor did not receive approval from Maricopa County to abandon existing septic.

Investigators Observation: Property owners state no work has been performed on site for almost a year. Existing tank and leach field are still in place. The process required by Maricopa County to abandon old system and any permits and required actions have not taken place. Contract states “Installation of new septic and abandonment of old septic tank, installation of new leach lines, we will need to pull permits on both installation and abandonment.”

*Obtain all required permits, inspections and approvals from code enforcement governing authorities and complete all required work.

Governing Rule: 32-1154(A)(3) Poor work or incomplete work – Contractor shall perform all work in a professional and workmanlike manner.

32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

32-1154(A)(2)(b) Building Codes – Departure or disregard of a building code.

Complaint Item #2: Contractor did not receive approval from Maricopa County to install new septic.

Investigators Observation: Property owners state no work has been performed on site for almost a year. Existing tank and leach field are still in place. Property owners state no permit is in place regarding the installation of the new septic system. Work has been performed that required a permit to be in place. Contract states “Installation of new septic and abandonment of old septic tank, installation of new leach lines, we will need to pull permits on both installation and abandonment.”

*Obtain all required permits, inspections and approvals from code enforcement governing authorities and complete all required work.

Governing Rule: 32-1154(A)(3) Poor work or incomplete work – Contractor shall perform all work in a professional and workmanlike manner.

32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

32-1154(A)(2)(b) Building Codes – Departure or disregard of a building code.

Complaint Item #3: Contractor did not pay the correct permitting fees and has outstanding balance. Collected money up front from me to perform work that including taking out necessary permits and removal of tank.

Investigators Observation: Property owners have paid the entire contract

amount of $22,000.00 and Elite Rooter Phoenix Inc has failed to obtain required permits and have abandoned the project. Contract states “Installation of new septic and abandonment of old septic tank, installation of new leach lines, we will need to pull permits on both installation and abandonment.”

*Obtain all required permits, inspections and approvals from code enforcement governing authorities and complete all required work.

Governing Rule: 32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

32-1154(A)(2)(b) Building Codes – Departure or disregard of a building code.

Complaint Item #4: Open trench and mound of dirt the size of our home for over a year adding to dust and not being able to use backyard with our small kids.

Investigators Observation: Observed open trenching and large piles of dirt at the property owners back yard. Observed health and safety hazard regarding the existence of raw sewage in open trenches.

*Complete project per contract.

Governing Rule: 32-1154(A)(3) Poor work or incomplete work – Contractor shall perform all work in a professional and workmanlike manner.

32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

32-1154(A)(2)(b) Building Codes – Departure or disregard of a building code.

Complaint Item #5: New installed septic has been open trench since Feb 2022 exposed to sun, water, natural erosion.

Investigators Observation: Property owners state no work has been performed on site for almost a year. Existing tank and leach field are still in place. New septic tank has been installed and the sewer yard line has been rerouted to the new tank. Discharge end of new septic tank is discharging raw sewage into the hole around the tank. Leach lines do not appear to be installed or connected. Leach line products/piping appear to be just thrown in the ditch randomly. Work is unpermitted and incomplete.

*Obtain all required permits, inspections and approvals from code enforcement governing authorities and complete all required and contracted work.

Governing Rule: 32-1154(A)(3) Poor work or incomplete work – Contractor shall perform all work in a professional and workmanlike manner.

32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

32-1154(A)(2)(b) Building Codes – Departure or disregard of a building code.

Complaint Item #6: June 2022 we reported issues with septic and company confirmed installed incorrectly, tore up yard even more.

Investigators Observation: Addressed permitting and workmanship issues in previous complaint items. Respondent has not been on site for almost a year and has abandoned the project.

Governing Rule: 32-1154(A)(1) Abandonment – Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

(All errors contained in the original)

On October 4, 2023, 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(a); and A.R.S. § 32-1154(A)(22).

On or about October 19, 2023, Respondent e-mailed an Answer to the Registrar.

On or about November 1, 2023, a Notice of Hearing was issued setting a hearing on December 12, 2023 at the Office of Administrative Hearings, an independent state agency.

Complainant testified on her own behalf. She testified that she initially contacted Respondent on February 15, 2022 as she noticed sewage backing up in her home. The next day she signed a contract with “Shane”, and on February 17, 2022, work began, and was completed two weeks later. Complainant testified that she was informed by “Shane” that the permitting process occur anytime between 6 months to a year.

Next, Complainant testified that in June 2022, sewage began backing up again so she contacted Respondent to come to the property. Complainant testified that “Steve” was now in charge of the project and determined that the installation was not performed correctly. Complainant testified that Respondent was going to backfill the trench, but that she stopped the same when she inquired about the permits. “Steve” left the project and Complainant has never spoken with him since.

In addition, Complainant testified that she started to investigate the permits and found that the permitting was to be done with Maricopa County. Complainant testified that the County informed her that her project was not properly inspected and that there were to be two permits pulled, one for the old tank and one for the new installation, however, neither was submitted by Respondent.

Complainant testified further that Respondent came to the jobsite on July 19, 2023 to perform measurements, and to start the permitting process, however they did not start work again until October 2023, well after the Directive expired.

Finally, Complainant testified that Respondent’s workers were at her house continuing to work, but that she wanted to move forward with her complaint.

The tribunals finds that the Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on December 22, 2023. Such prior License record reflected that Respondent’s License No. 316232 was first issued on November 2, 2017, and reflected that there were two open complaint, one of which included the present complaint, and there was one disciplined case.

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 failed to obtain valid permits for the job in violation of A.R.S. § 32-1154(A)(2)(b).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Besides the lack of permits, Respondent left an open trench and the new septic tanks was not installed correctly. 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 within the time allotted and did not request an extension. 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. 316232 for a period of ten 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.

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, December 22, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Elite Rooter Phoenix Inc.

[email redacted]

Elizabeth Soto

[email redacted]

By: OAH Staff