ALJDEC - Licensing

2024A-02168-CHC-ROC · Registrar of Contractors · 2024-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shirley Nelson,

COMPLAINANT,

v.

All Valley Rooter And Plumbing LLC,

License No. ROC 348344,

RESPONDENT.

No. 2024A-02168-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 9, 2024 and September 12, 2024, with record held open for review of record.

APPEARANCES: Attorney Audrey Cohen-Davis represented Shirley Nelson (Complainant). No person appeared on behalf of Respondent All Valley Rooter and Plumbing LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC hearing packet (Packet); Complainant Exhibits 1 through 137.

_____________________________________________________________________

FINDINGS OF FACT

All Valley Rooter and Plumbing LLC (Respondent) is the holder of Specialty Residential R-37R Plumbing License No. 348344 issued by the Arizona Registrar of Contractors (Registrar or ROC) on October 25, 2023.

On or about February 2, 2024, Complainant entered into the first contract with Respondent for plumbing work (toilet leaking issues and associated work).

On or about February 7, 2024, Complainant entered into a contract with Respondent for replacing about 300 feet of the main sewer line and other associated work therewith, including rerouting lines from the toilet and faucets, at a projected cost of $35,000.00. On February 7, 2024, Complainant wired $8,000.00 to Respondent as a deposit; on February 16, 2024, Complainant wrote a check to Respondent in the amount of $21,829.00 for the remainder of the sewer line project.

On or about February 16, 2024, Complainant entered into a contract with Respondent for replacing about 70 feet of water main pipe; the contract noted a possibility of needing additional pipe depending on the condition of the pipe. The projected cost was $4,200.00.

Respondent began work on February 2, 2024. The last date of Respondent’s work was February 19, 2024; Respondent did not complete all parts of the three projects.

On or about February 22, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work by Respondent with respect to the projects. On February 26, 2024, Registrar Investigator Jim Dimond sent a letter to the parties scheduling a jobsite inspection for March 18, 2024.

Investigator Dimond conducted a jobsite inspection on March 18, 2024. Respondent failed to attend.

Prior to the jobsite inspection and after the job site inspection, Investigator Dimond spoke with Ryan Greene, a Prescott city official, about the city code requirements. Mr. Greene confirmed to Investigator Dimond that the work was in violation of city code regarding piping size and clean outs.

Investigator Dimond inspected the complaint items and, after the jobsite inspection, he issued a written directive (Directive) dated March 20, 2024 to Respondent that provided the following statements:

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 Friday, April 5, 2024.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - Floor in studio bathroom breached at wall and not

repaired (not the toilet or sewer connection).

Investigator’s Observation: At the right of the commode, a small clean out is present and it looks like the tile was removed and set back in its place. The clean out lid is exposed and a trim piece should be in place.

The respondent is to correct condition in an appropriate manner

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: 4 - Toilet in 2 bedroom unit now not flushing correctly

when it did prior to the work by the contractor.

Investigator’s Observation: The toilet refills extremely slowly and when

flushed, gurgles and burps. It is clearly not functioning properly.

The respondent is to correct the condition in an appropriate manner

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: 6 - Not all new sewer line wrapped in vinyl per contract,

written communications and verbal discussions.

Investigator’s Observation: The drain line is only partially wrapped.

The respondent if to correct the condition in an appropriate manner.

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: 11 - No city permit obtained. Contractor didn't file one

and owner did not know one needed to be filed

Investigator’s Observation: The respondent had an obligation to either

contract for and obtain a permit or ensure that the homeowner had a permit in place. The complainant and tenants have been without facilities. One tenant is pregnant.

A permit is required and the city of Prescott has confirmed that no permit for this work has been issued.

The line and the cleanouts are not properly sized.

Additionally, the clean out pops are undersized and connection to the city

sewer line in the easement is inappropriate and a health hazard.

The respondent is to obtain the necessary permits and comply with the

requirements of the city inspections.

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Compliance Item: 12 - Breaches in foundation not properly repaired

Investigator’s Observation: At 2 locations, an approximately 24" long

piece of wood was used to fill the hole to under the house.

This is at the foundation and this would is not a replacement for the structural requirements for the home.

The respondent is to correct the condition in an appropriate manner.

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: 13 - Breaches in studio bathroom floor not properly

repaired

Investigator’s Observation: The ceiling had an event of water intrusion and is not repaired. It appears that the intrusion was caused after the master bath plumbing was manipulated. Some damage is also present at the ceiling in the kitchen.

The respondent is to correct the corollary damage in an appropriate manner.

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: 14 - 2 berm toilet worked prior to start project, quit

working 2 days after told project completed

Investigator’s Observation: The toilets are not functioning properly.

The respondent is to determine the cause and correct the condition.

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: 15 - Owner told that toilet wasn't included in scope of

project, it wasn't checked for functionality during or at completion

Investigator’s Observation: Toilets appear on the invoice.

The respondent is to correct the condition in an appropriate manner.

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: 17 - Area on east side of the house not leveled nor dressed properly

Investigator’s Observation: At the time of inspection, this area is has not been back filled and is a considerable mess.

The respondent is to correct the condition in an appropriate manner

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.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 1 - Showered installed leaks. (Under 2 year warranty)

Investigator’s Observation: Per the complainant, the shower no longer leaks but questions the need to have a drywall repair just above the floor.

The drywall repair meets minimum standards.

No action is required of the respondent regarding this item.

Compliance Item: 2 - Kitchen faucet installed leaks. (Under 2 year

warranty)

Investigator’s Observation: This item was corrected.

Compliance Item: 5 - Trespassing on neighbor’s property with equipment

and tearing up their yard.

Investigator’s Observation: This item is beyond ROC authority and

would be a matter for law enforcement

Compliance Item: 7 - Flower beds destroyed and not restored to prior

condition. (Beds were not supposed to be disturbed.)

Investigator’s Observation: The lines have been exposed by others and

therefore, I cannot make a determination regarding the flower beds.

No action is required of the respondent.

Compliance Item: 8 - No porta potty onsite for workers during a 17 days of

work

Investigator’s Observation: This is a matter outside of ROC authority.

Jurisdictions may require a port a john when a permit is issued however in this case the respondent failed to obtain or verify a permit was in place.

Compliance Item: 9 - Trenching for sewer lines in lower yard and upper

water main project not where we discussed.

Investigator’s Observation: The complainant relayed that she wanted the line to exist the house to the west and go out to the yard and across the lawn. The pipe came straight out of the south wall of the home and through the flower beds. However, I cannot verify the conversation and no plans have been presented to confirm the claim.

No action is required of the respondent at this time.

Compliance Item: 10 - Contractor stopped work on water main project

because he got mad at me for recording conversation so I stopped payment.

Investigator’s Observation: The water main portion of the project was not completed and apparently not needed. The respondent's son merely tightened a nut and the system has been functioning properly. It was not leaking at the time of inspection.

This is a customer service matter beyond ROC authority.

On April 3, 2024, Ms. Croce emailed Investigator Dimond to indicate that he had missed the meeting due to being in the hospital. Mr. Croce also indicated that he was working on adding a “dba” to the company name.

On April 5, 2024, Investigator Dimond confirmed with Complainant that no further or corrective work had been done by Respondent, and he forwarded the matter to the ROC Legal Department.

On April 8, 2024, the Registrar issued a Citation against Respondent, charging multiple possible violations:

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

Charge 2: A.R.S. § 32-1154(A)(2)(a). 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.

Charge 3: A.R.S. § 32-1154(A)(2)(b). Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Charge 4: A.R.S. § 32-1154(A)(3) - R4-9-108(a). 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.

Charge 5: A.R.S. § 32-1154(A)(14). Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.

Charge 6: A.R.S. § 32-1154(A)(22). Failure 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 April 23, 2024, counsel for Respondent filed an Answer to the Citation with responses to each of the alleged violations. Counsel indicated that Mr. Croce’s wife had been in the hospital (in Oregon) on March 19, 2024 and Mr. Croce had been unable to contact the Investigator to reschedule, and thus he had not had an opportunity to explain the status of those items. Counsel noted that one reason Respondent had stopped working was that Complainant had not signed off on the February 16, 2024 change order [for $4,200.00] and another reason was that Complainant’s payment check was not honored. Counsel indicated that many of the items on the Directive were not on a contract but sprang from verbal agreements between the parties, one of which was that Complainant was contractually obligated to have paid for and obtained the permit. Overall, Respondent requested the opportunity to have the investigation reopened and have another inspection.

The matter was not resolved by the parties prior to matter being noticed for administrative hearing.

On May 20, 2024, ROC issued its Notice of Hearing setting the hearing for June 24, 2024.

On June 10, 2024, counsel for Respondent withdrew from representation and the hearing was continued to convene on September 9, 2024.

Despite being copied on the Order granting the continuance and the Order setting the virtual hearing session, no person appeared on behalf of Respondent. The convening of the hearing was delayed for over 20 minutes allowing time for Respondent to appear. The hearing was convened but was not completed on September 9, 2024. The Order granting further hearing to September 12, 2024 was also copied to Respondent; no one appeared on September 12, 2024 on behalf of Respondent.

Respondent failed to appear at the administrative hearing sessions and, therefore, did not present any evidence or defenses to be considered in this matter.

At hearing, Investigator Dimond testified with regard to his Directive findings. Investigator Dimond was able to view damage on the jobsite which, due to being caused by Respondent’s work on items completed (i.e. installation of a toilet, without competing adjacent flooring work), would fall within workmanship issues of Respondent that would need to be corrected. Investigator Dimond was able to observe workmanship issues with the sewer line work and the water line work. Investigator Dimond confirmed with City official Brian Greene that the pipe used was the incorrect size per applicable code and that the backfill was inadequately done.

At hearing, Complainant presented multiple witnesses who provided opinions regarding the status of Complainant’s home and surrounding site, the status of Respondent’s work, and also either performed some immediately needed repairs or provided estimates to complete and/or correct Respondent’s work including the alleged damages caused by Respondent’s work. The details provided by those witnesses’ opinions regarding what would be needed to correct Respondent’s work provided support for the Investigator’s findings in further confirmation that workmanship issues did exist.

Complainant submitted multiple photographs to demonstrate the job site status during and after Respondent’s work and after some repairs were made by others. Complainant argued that she had been significantly harmed, financially, as a result of Respondent’s work, poor workmanship, abandonment of the projects, and property damages caused or as a result of Respondent’s work.

Administrative notice is taken of Respondent’s license records with the ROC on November 7, 2024. Respondent’s designated name is now All Valley Rooter and Plumbing LLC dba Armour Drain and Plumbing. The ROC licensure records reflects that Respondent’s license was disciplined twice in 2024 and the instant complaint is currently the only open complaint against Respondent’s License No. 348344.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 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. Following the issuance of the Directive mandating correction of multiple workmanship items, Investigator Dimond found that multiple workmanship issues still existed at the time of the compliance inspection. At hearing, Investigator Dimond testified that those workmanship issues had been uncorrected at the time of the compliance inspection.

10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues and statutory violations existed and, thus, Respondent was in violation of each of the cited contracting statutes including:

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

(b) A.R.S. § 32-1154(A)(2)(a). 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.

(c) A.R.S. § 32-1154(A)(2)(b). Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

(d) A.R.S. § 32-1154(A)(3) - R4-9-108(a). 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.

(e) A.R.S. § 32-1154(A)(14). Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.

(f) A.R.S. § 32-1154(A)(22). Failure 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.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 348344 as follows:

a five business-day suspension on the effective date of the Registrar’s Order in this matter; and,

require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 may 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 Ariz. Rev. Stat. § 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, November 7, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Director

Registrar of Contractors

Legal Department

[email redacted]

[email redacted]

Audrey Cohen-Davis, Esq.

[email redacted]

[email redacted]

All Valley Rooter and Plumbing LLC

[email redacted]

[email redacted]

By: OAH Staff