ALJDEC

98F-1815-ROC · Registrar of Contractors · 1998-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 1998 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president, Boyd Lisonbee. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract for a kitchen remodel project, personnel who are now affiliated with Respondent, were involved as principals in the corporate licensee (Purofirst of Mesa, license no. 093719) that performed the construction work at issue herein. As authorized by A.R.S. §32-1154A (20), the conduct of such personnel may provide a valid basis for disciplinary proceedings against Respondent, since any proven misconduct would reflect adversely upon the good character requirement for licensure and/or renewal as set forth in A.R.S. §32-1122D. 2. It is important to note that the same officers and qualifying party appear on both the license of Purofirst of Mesa and Respondent. Moreover, it would appear that Respondent is the successor corporation of Purofirst of Mesa and will be treated as such for purposes of this hearing.

3. The work in question was performed under an insurance claim due to a plumbing pipe leaking water onto a specified kitchen cabinet. Complainants allege certain deficiencies in work performed and same are discussed in the findings below. 4. At the outset of the scheduled hearing, Complainants attempted to include additional items to their complaint which were not set forth on the original filed complaint. Although Complainants had mailed a document to the Registrar of Contractors requesting an amendment to their complaint, the Citation and Complaint in this matter was never formally amended by the Registrar of Contractors. Thus, Respondent had no notice that issues, other than those specified on the original complaint, would be considered at the instant hearing. 5. Based on basic principles of due process under the law, the instant hearing was limited to only the issues contained on the original filed complaint. Nevertheless, nothing in this ruling would serve to prevent Complainants from filing another complaint with the Registrar of Contractors regarding any new issues that they are unable to resolve with Respondent. 6. The following salient facts regarding the construction project at issue herein were adduced at the hearing and are important to note: a. A new kitchen sink was installed in Complainants’ kitchen in the latter part of August 1997. b. The weight of the evidence of record was sufficient to support a finding that Complainants hired another contractor (or serviceman) to install a reverse osmosis system under the new sink after the new sink installation and ancillary plumbing had been completed. c. On Christmas day 1997, Complainants thawed a turkey in the sink in cold water. d. It was not until New Year’s Eve day that Complainants first noticed some water damage at the bottom of the kitchen sink cabinet which they believe was attributable to the thawing of the turkey in water on Christmas. e. Complainants contacted Respondent’s president and he advised them that they should hand tighten the strainer basket flanges under the sink. Complainants performed this task and due primarily to a communication misunderstanding, this phone call is the last that Respondent’s president heard from Complainants until the time that they filed the instant complaint with the Registrar of Contractors on February 2, 1998. 7. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held. At the jobsite the inspector noted a very minor leak from the right sink strainer basket only after the sink was completely filled with water. He also notes minor water damage to the bottom of the kitchen sink cabinet. As a direct result of this inspection, the Registrar of Contractors sent a Corrective Work Order to Respondent directing it to correct the leak and repair the water damaged area of the kitchen sink cabinet. 8. In response to the aforementioned Agency directive, Respondent immediately caused a plumber to repair the leak. The plumber repaired the leak in question and also discovered a leak in the reverse osmosis system (not installed by Respondent) and fixed that leak also. 9. Upon being apprised by his plumber that there was a leak in the reverse osmosis system, Respondent refused to make any repairs to the water damaged cabinet. The weight of the credible evidence of record was sufficient to support a finding that the individual that installed the reverse osmosis system, subsequent to the sink installation, would have disconnected and re-connected the sink plumbing work in order to install the reverse osmosis system behind the plumbing pipes. In fact, upon being apprised for the first time at the instant hearing that the reverse osmosis system had been installed by others, subsequent to the new sink installation, the assigned agency inspector indicated that he may not have issued a Corrective Work Order, had he been aware of these facts at the jobsite inspection. 10. Complainants failed to establish by a preponderance of the evidence that the water damage sustained by their kitchen sink cabinet was attributable to Respondent’s workmanship or materials. 11. Uncontroverted evidence of record established that at the time the work in question was bid, contracted, and performed that the license of Purofirst of Mesa was suspended for lack of a qualifying party. The acts of Respondent’s personnel in contracting while the prior license was under suspension constitutes a wrongful act within the meaning of the applicable charged section of the State’s contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record supports a determination that, in this case, disciplinary action is appropriate and fully warranted pursuant to A.R.S. §32-1154A (20). 2. Respondent is deemed to have violated A.R.S. §32-1154A (7). RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class B license shall be placed on a period of disciplinary probation for sixty (60) days.

Done this day, August 19, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of August, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826