ALJDEC

00F-F0242-ROC · Registrar of Contractors · 2000-10-16

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 10, 2000.

APPEARANCES: Complainant, Terri Delfay, appeared in her own behalf.

Respondent, J. Burgart, Inc., appeared through its President and qualifying party, John Robert Burgart.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. At all times material herein, Respondent was and is still the holder of a residential Class B-03 license issued by the Registrar of Contractors.

2. In September, 1999, Respondent submitted a written proposal to the Complainant/Homeowner offering to perform certain specified roofing work (not involved in this complaint) plus the furnishing and installing of a 3-1/2 ton Coleman Evcon Heating Ventilation and Air Conditioning (HVAC) unit for the dwelling. The proposal was accepted in its entirety by Complainant, thereby ripening into a contract.

3. The agreed contract price for the contemplated work, in the total amount of $13,371.00, was fully paid to Respondent by Complainant, who transmitted one-half shortly after signing the agreement and the balance upon completion of the work approximately six weeks later. The written proposal and contract reflected that the sum of $3,500.00 had been allocated for the HVAC portion of the overall contemplated work.

4. Very soon after installation, a complaint relating to a lack of heating in one portion of the home was communicated by Complainant and prompted further remedial efforts on the part of Respondent in addressing the problem with some measure of success.

5. The failure of Respondent to properly restore the premises to a reasonably neat condition following the attempts to obtain better heating performance combined with an understandable concern by Complainant that some aspects of the work were contrary to applicable local building code provisions, based upon advice and comments voiced to her by others, resulted in the filing of the instant complaint and a subsequent jobsite inspection.

6. Even prior to the actual jobsite visit by the Registrar’s assigned Inspector, Respondent had caused the correction of reported and confirmed electrical deficiencies through another properly licensed electrical contractor sent by and paid by Respondent.

Nevertheless, the Inspector did conclude that additional remedial work or actions were necessary and issued a written Corrective Work Order directing Respondent to accomplish several enumerated items. Except as noted below, the provisions of the directive were ultimately rectified by Respondent.

7. The testimony indicated that a required permit for the air- conditioning portion of the overall work had never been obtained nor was the installation passed by the local building authority. It further appeared that there was an incorrect use of flex duct materials, that the exterior unit was placed upon a pad of insufficient size and that the condensate lines did not adequately transport water away from the structure.

8. It is found and determined that both the bidding and the direct performance of the air-conditioning work were beyond the proper scope of Respondent‘s Class B-03 contracting license.

9. The evidence tended to indicate that Respondent has made some attempts over an extended time period, wholly without success, to find and retain the services of a properly licensed specialty contractor who is willing to correct deficiencies and to belatedly assure that an appropriate permit would be issued to cover the work performed. The municipality has properly and commendably refused to issue a permit unless a properly licensed mechanical contractor has been selected and has agreed to undertake any and all corrections that may be necessary.

10. It also appeared that Complainant should be able to secure the services of a local specialty contractor who is qualified to and willing to correct any improprieties and otherwise cause the installation to comply with applicable code requirements and to pass all inspections. The costs for these services as well as for the permit must be paid

in advance to Complainant by Respondent as soon as they are ascertained. If a cost price is tentatively determined prior to any City inspection, the financial obligation of Respondent shall extend to the reimbursement for incurred costs of any added work made necessary to achieve compliance with the requirements of the municipality after such inspection.

11. The fact that the instant complaint appears to be the first complaint filed against Respondent according to the Registrar’s license records, of which administrative notice has been taken, may properly be considered as a matter in mitigation when formulating appropriate lingering penalties for the impermissible performance of work which not only was outside the scope of Respondent’s license but also was undertaken without first obtaining a required local building permit.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established that Respondent has violated the provisions of A.R.S. § 32-1154A (2), (7), (17), (23) and (3); namely Rule R 4-9-108.

2. Notwithstanding a recognized long-standing policy of the Registrar normally allowing a contractor rather than a property owner to perform or to arrange for the performance of necessary remedial work or actions, under all the circumstances of this case, an appropriate condition in any disciplinary Order should be to allow Complainant to locate and obtain a commitment from a properly licensed mechanical subcontractor willing to rectify all deficiencies, to cause a permit to be issued and to cause the installed system to comply with all codes and to pass all local inspections. The proposed monetary costs for the contemplated work should be promptly communicated to Respondent who should be required to pay either Complainant or the selected specialty contractor in advance for all such reasonably anticipated costs.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, commencing on the effective date of this Order, that Respondent ‘s Class B-03 license shall be suspended until the Registrar receives proof that Respondent has paid or tendered to Complainant a monetary amount equal to the lowest of at least two bids by licensed air-conditioning contractors for HVAC work encompassing the obtaining of a necessary local permit and the passing of all required inspections by performing any and all designated work on the installed system so as to comply with code provisions and/or prevailing industry standards. In this connection, and by way of an express condition precedent to Respondents payment duty, Complainant shall be required to communicate to Respondent in writing the monetary amount, together with supporting written proposals, no later than twenty (20) days after entry of the Registrar’s Order. (See Finding of Fact Number 10 and Conclusion of Law Number 2).

It is further recommended, in addition to the above-provided provisional license suspension, if any, that Respondent’s Class B-03 license be suspended for a period of seven (7) days followed immediately by a period of disciplinary probation for sixty (60) days. This additional penalty shall commence on the effective date of this Order or the date on which written notice of Respondent’s compliance with the payment terms of this Order is filed with the Registrar, whichever is later.

Dated: October 19, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington Street (6th Floor) Phoenix, AZ 85007

Attn: Joyce Armijo -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826