ALJDEC

98F-2442-ROC · Registrar of Contractors · 1998-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 1998 APPEARANCES: Mary Bell, on her own behalf; Martin Dawson, Jr., on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT On February 10, 1998, Complainant called Respondent to fill her pool propane tank (“tank”) at her home located at 9873 East Turquoise, Scottsdale, Arizona (the “Home”). When Respondent came out to fill the tank, Respondent started filing the tank but noticed a gas leak. Respondent’s technician stopped filling the tank and recommended that Complainant request a service call to determine the cause of the gas leak. At Complainant’s request, Respondent performed a service call to the Home and determined that the first stage regulator and pigtail required replacement. Respondent performed such work and also recommended that the relief valve and dome be replaced. Robert Parsons, Respondent’s field supervisor and service technician, performed the above-mentioned work at the Home on February 11, 1998. At that time, Mr. Parsons did not attempt to replace the relief valve because there was still pressure in the tank. After the February 11, 1998, service call, Complainant contacted Respondent and arranged for Respondent to replace the relief valve and dome. Respondent performed such work on February 14, 1998. Conflicting testimony was presented concerning when Complainant received and signed the invoices for February 11, 1998, and February 14, 1998. However, it is determined that the date on which those invoices were signed and received by Complainant is not relevant to the matter at issue in this proceeding. There is no dispute that Respondent performed the above- mentioned work on the above-mentioned dates. Complainant testified that when she arranged for Respondent’s service call there was no discussion as to when payment must be made for such work. However, Kevin Dittler, Respondent’s installation supervisor, testified that when he spoke with Complainant on February 11, 1998, he informed her that payment for service calls are made C.O.D. (“cash on delivery”). The sharply conflicting evidence presented concerning the terms of payment are such that the Administrative Law Judge has no reason to disbelieve the evidence presented by either party. Upon reviewing the invoices, Complainant questioned whether the repair work that had been performed by Respondent was under warranty as Respondent performed certain repairs for the prior owners of the Home approximately one year before. Mr. Dittler testified that Respondent had replaced the first stage regulator for the prior owners. However, Mr. Dittler testified that in the instant matter, it was determined that the first stage regulator had malfunctioned as a result of the accumulation of water in the dome. Normal warranty for a first stage regulator is 90 days. According to Mr. Dittler, in Arizona, a first stage regulator lasts for 8 months to 2 years. When the service call was completed on February 14, 1998, either that day or on February 16, 1998, Respondent requested payment from Complainant. On February 16, 1998, Complainant informed Respondent that she needed forty- eight hours to transfer funds to her checking account. Between February 16, 1998 and February 19, 1998, Respondent went to the Home and removed the first stage regulator that it installed on Complainant’s gas tank. It is undisputed that Respondent neither notified Complainant that it intended to take such action nor did Respondent request Complainant’s permission to enter upon her property for such action. Respondent did not obtain Complainant’s authorization or permission to be upon the premises for the removal of the first stage regulator. Respondent contended that because Complainant owed Respondent money for services rendered that it could remove the first stage regulator from Complainant without obtaining permission to be upon her property. Respondent failed to present any legal authority in support of that contention. Assuming arguendo that Complainant owed Respondent money for services and material rendered, it is determined that Respondent’s entry upon Complainant’s premises without permission, as well as the removal of the first stage regulator, constitutes a wrongful act within the meaning of A.R.S. §32-1154(7). As this hearing is in the nature of an administrative license disciplinary proceeding, it is unnecessary for this tribunal to address the money dispute between the parties and, as there is a small claims action pending regarding that issue, it is more appropriate for a civil court of competent jurisdiction to resolve that dispute. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(7). RECOMMENDED ORDER It is recommended that commencing on the effective date of the Order entered in this matter, the Registrar of Contractors suspend Respondent’s Class C-37R license for five consecutive business days. It is further recommended that, in addition to the above suspension, that any restoration of Respondent’s rights to resume contracting be subject to the requirement that Respondent first post an additional surety bond, cash deposit or alternative deposit in the amount of $1,500.00, for a period of twenty-four months, including future renewal periods and that such bond or deposit be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. §32-1152(D). The additional surety bond, cash or alternative deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four month period and only if no claims are then pending. Done this day, August 28, 1998.

_________________________________ LEWIS D. KOWAL 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