ALJDEC - Licensing

2024A-13486-CHC-ROC · Registrar of Contractors · 2025-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Theresa Cook,

COMPLAINANT,

v.

Pure Magic Plumbing LLC,

License No. ROC 341856,

RESPONDENT.

No. 2024A-13486-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 4, 2025

APPEARANCES: Theresa Cook represented herself in person. Qualifying Party Markie Brown represented Pure Magic Plumbing LLC in person. Registrar Investigator Mark Nipp appeared virtually as a witness on behalf of the Registrar.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Registrar Notice of Hearing Packet (Packet). __________________________________________________________________

FINDINGS OF FACT

Pure Magic Plumbing LLC (Respondent) is the holder of License No. 341856, CR-37 Plumbing, issued by the Arizona Registrar of Contractors (Registrar or ROC) in November of 2022.

On December 11, 2024, the Registrar received a Licensed Complaint Form (Complaint) from Theresa Cook (Complainant) against Respondent stating the following:

I don’t think they even understand the plans they have shown me but I’m out 50k and they’ve wasted 6 months of my life for 2 weeks of work. What I can tell you they did in July 16 2024 was gut my kitchen and master bathroom lay flooring on the north side of my [ ]. I went over there several times asking why they were doing flooring and asking me to pick out paint colors when we haven’t even bought cabinets counter top much less get a permit from the city and he told me it had something to do with a gas line which I don’t have gas in my house so I went to the city and they stated they sent what they require on 8/22/24 and haven’t [heard] back from them. We had a meeting at the house I wanted to see what they had submitted and Markie couldn’t provide me that info she said she sent to the city but she was going to go get in and meet me back at my house at 2pm but she never came back just her husband with an excuse that she was going to resubmit the plans to the city. I asked about the gable and the comment from his coworker Tyler, was that would be opening up a can of worms. Mind you this is after I’ve given the 50k to do the work so I got upset and told them I do [not] feel confident them doing the work; go home talk to your wife if not give me my money back I’ll pay you for what you have done and we will move on. So here we are today December 11, 2024 and my house looks no different than it was July 16, 2024 although they did hire a company to do actual plans but they changed the roof from gable to just tying it into the existing roof and that is not what was agreed on so it’s a he said she said thing they’ve taken my 50k and I don’t even have a home to go back to. I’ve again asked for my money back and I’d pay them for what they did for the last 3 days and get nothing but excuses.

The project was a kitchen and primary bath remodel at an estimated project cost of $97,050.00 to $101,750.00. Complainant signed off on an estimate on July 11, 2024; Complainant gave $50,000.00 in deposits to Respondent. Respondent began work on or about July 16, 2024, removing and installing flooring and removing cabinets and fixtures in the kitchen and bathroom. The work stopped on September 25, 2024.

The Registrar assigned the Complaint to Investigator Mark Nipp, who conducted a Jobsite Inspection on December 30, 2024. Inv. Nipp reviewed the project site in light of the Complaint narrative. Inv. Nipp’s photographs documented that the kitchen and bathroom had been stripped of the cabinets and fixtures.

Inv. Nipp verified the City of Mesa permit status as awaiting revisions.

On December 30, 2024, Inv. Nipp issued a warning letter to Respondent regarding contracting beyond the scope of its CR-37 Plumbing license and indicating that the documents he reviewed had shown work contracted and to be performed had required a B-General Residential Contracting License.

On December 30, 2024, Inv. Nipp issued a warning letter to Respondent about the necessary building permits not having been obtained for Complainant’s project. Inv. Nipp noted that it was a violation of and could be grounds for discipline, to violate, Ariz. Rev. Stat. § 32-1154(A)(2).

On January 2, 2025, Inv. Nipp issued a Written Directive (Directive). The Directive indicates the following, in pertinent part:

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 Monday, January 20, 2025.

. . .

DIRECTIVE REQUIREMENTS

The complaint items annotated as “Verified” require corrective work. You are directed to remedy the violations by the appropriate means.

ITEMS NOT REQUIRING CORRECTION The complaint items annotated as “Not Verified” require no action by the Respondent.

1 Verified Complaint Item:

The Respondent has (a) failed to obtain a building permit, (b) abandoned the project, and (c) departed from the original plan (gable roof).

Investigator’s Initial Observations: Verified

Both parties agreed the original scope of work was as follows:

Remodel kitchen

Bathroom addition

Move electrical panel

Add a gable roof to addition

Plumbing for the new bathroom

Both parties agreed that the project stalled and that the Complainant asked the Respondent to refund her money (minus any reasonable fees for work that has been done).

Both parties agreed that the Respondent after the Complainant asked for a refund, the Respondent removed all tools/equipment and vacated the property.

Both parties agreed that they have not reached an agreement on what the reasonable fees for work that has been done and they are at an impasse.

The Respondent stated they were going to accommodate the Complainant by canceling the contract and issuing a refund; however, they cannot agree on the amount to be refunded.

I saw the following:

(a). I conducted a search of the Mesa Building Department and located building permit application PMT24-17340 which was annotated “Revisions Required”. According to the International Residential Code (IRC); Section 105.1 a contractor is required to obtain a building permit prior to performing work that requires a permit.

IRC; Section 105.2 lists work that does not require a permit. I reviewed that section and noted that room additions, roof modifications, new plumbing, and moving electrical panels are not listed as exempt from a building permit. The Respondent was required to have a building permit is their possession prior to beginning the work for this project. Additionally, A.R.S. § 32- 1154(A)(2)(b) prohibits a contractor from departing/disregarding the building code. Warning Letter Sent.

(b). The construction process had been started and there was protective plastic hung throughout the home as well as protective material covering newly installed flooring. I saw the kitchen, laundry room, and bathroom had been demoed. There was an unfilled saw cut section in the kitchen. I noted the electrical panel had not been moved and the gable roof had not been installed.

(c). During the Jobsite Inspection, I spoke with the Respondent and discussed their ROC license. The Respondent confirmed they had only one ROC license (341856/CR-37 Plumbing). The Respondent acknowledged they were not authorized to do the work listed in the scope of work for this project. Warning Letter Sent for A.R.S. § 32-1154(A)(16).

Required Actions:

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s): 2-10

Governing Rule(s):

A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code. Namely International Residential Code (IRC); Section 105.

A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

A.R.S. § 32-1154(A)(16) – Working out of scope of contractor’s license.

On January 30, 2025, the ROC issued a Citation against Respondent charging the following possible violations:

Charge: 1 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: 2 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: 3 A.R.S. § 32-1154(A)(3) - R4-9-108(B)

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Charge: 4 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. . . .

On February 14, 2025, Respondent filed an Answer to the Citation, explaining the process it had undertaken in its efforts to maintain progress on the project. Respondent noted that when additional renderings were needed, Complainant had balked at the cost and, further that work was “stopped” several times and meetings were held. Respondent noted that, after Mesa required further resubmittal, an architect became involved and Complainants also wanted to re-measure and then make some changes to the bathroom layout. Respondent indicated that, after Complainant received those plans, she again questioned the plans. Finally, Respondent indicated that it wanted to issue a refund to resolve the Complaint but that they had not come to any agreement on the refund.

The Registrar subsequently referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

On March 5, 2025, the Registrar issued a Notice of Hearing setting the matter to convene on April 4, 2025 and the Office of Administrative Hearings issued an ORDER advising the parties about the virtual hearing and specifying how to connect to the virtual session. Despite the virtual option, both parties appeared in person for the hearing, while Inv. Nipp appeared virtually.

At the time of the hearing, the matter remained unresolved.

At hearing, Inv. Nipp testified consistent with the findings contained in his Jobsite Inspection notes and Directive. Inv. Nipp further indicated that if Respondent had obtained the B-General Residential Contracting License by the January 20, 2025 Directive deadline, he might have considered giving an extension to Respondent to do the work under the contract but that at that time in the absence of the proper license, Respondent could not perform general residential work. Inv. Nipp indicated he had received an email from Ms. Brown on January 27, 2025, that she was scheduled to take the test the coming Friday, but because it would have been past the deadline, he had to forward the matter to ROC legal department.

At hearing, Complainant stated that she had had no idea Respondent was not able to perform the contracted work. Complainant indicated that she had wanted a gabled roof over the newly renovated bathroom and that when plans were being changed, she had stopped them from doing work because the permit process kept being delayed. Complainant stated that she went to the City to get information about the permit and was advised that the City was waiting for information from Respondent. Complainant indicated that she had been out of town at the time when an architect had been brought in and that, as to the cost of full architectural drawings, Respondent had said it would absorb 50% of that cost. Complainant stated that, in September 2024, she had asked for the deposit money back and told Respondent she would pay them for the work they had done. Complainant indicated that Respondent had then given her an invoice for costs of $40,000.00 but Complainant felt that Respondent had not done $40,000.00 worth of work. Complainant requested that she be given back her money.

At hearing, Ms. Brown indicated that she had passed the contracting testing on January 30, 2025 and had obtained a General Dual KB-2 Dual Residential and Small Commercial license on February 14, 2025. Ms. Brown indicated that she felt Respondent could continue to have done work that did not require a permit and that they had intended to hire properly licensed contractors to do the other work. Ms. Brown indicated that Respondent removed flooring, installed the underlayment (which Respondent “had purchased and hoped to be paid for”) and installed the flooring materials that Complainant had supplied. Ms. Brown indicated that Complainant was insisting on a gabled roof but that it would have been more expensive and Complainant had not agreed to the additional costs either for new drawings or the cost of the gabled roof. Respondent requested to be able to do the work now that they are appropriately licensed.

Respondent provided a copy of the parties’ contract/estimate.

During the hearing, the parties were given an opportunity to speak, off the record, regarding a possible settlement of the matter. However, the parties were unable to come to an agreement and the hearing proceeded to a conclusion after which the Tribunal would be making this recommended decision to the ROC.

Since the April 4, 2025 hearing, Complainant has not notified the Tribunal that the parties have come to any settlement.

Administrative notice is taken of Respondent’s license history and status with the Registrar on May 11, 2025. Respondent’s ROC public license record reflects that Respondent’s CR-37 Plumbing license, License No. 348546, is active, with the instant case being the only open case regarding that license. Respondent’s ROC public license record reflects that a KB-2 Dual Residential and Small Commercial License # 357161 for Unlimited Construction And Design LLC was issued on February 14, 2025; Markie Brown is the Qualifying Party.

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. See 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. Based on the evidence in the hearing record, the Administrative Law Judge concludes that the Investigator-determined permit and workmanship issues had existed at the time of the December 30, 2024 jobsite inspection and were reflected in the Directive. The Respondent had not obtained the proper permit or licensure pursuant to the Directive and, thus, as cited by the ROC, at this project Respondent was in violation of the following Arizona contracting laws and rules:

Ariz. Rev. Stat. § 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;

Ariz. Rev. Stat. § 32-1154(A)(3) – A.A.C. 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;

Ariz. Rev. Stat. § 32-1154(A)(3) - R4-9-108(B)

Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity;

Ariz. Rev. Stat. § 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 suspend Respondent’s ROC License No. 348546 for a period of three days.

It is further recommended that the Registrar 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 (30) days following the effective date of the Registrar’s final order, the Registrar shall 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 Ariz. Rev. Stat. § 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, May 12, 2025.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

Pure Magic Plumbing LLC

[email redacted]

Theresa Cook

[email redacted]

By: OAH Staff