ALJDEC

01F-S0120-ROC · Registrar of Contractors · 2001-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, November 15th, 2001; 8:30 a.m. APPEARANCES: The complainant, Ms. Bonnie Williams, represented herself. The respondent, Mr. Eric Winter, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, in Sierra Vista. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT

1. The respondent in this case, Eric Winter, doing business as Winter Works, is, and during all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, holding Class B License number 137891. 2. The complainant Ms. Bonnie Williams, contracted with the respondent on or about October 2nd, 2000, for the respondent to design and install a new heating and air conditioning system, complete with ductwork and thermostat, in her Bisbee, Arizona residence. 3. Respondent completed his work on or about November 17th, 2000, and, according to his testimony at the hearing, he checked the system immediately after its installation and it was functioning properly. However, the complainant’s evidence and, in fact, the preponderance of evidence, prove a quite different story. 4. Complainant’s testimony is that the system does not now and never has functioned properly. In her complaint, filed in the registrar’s office May 18th, 2001, she alleged not only that the system is not functioning properly, but also that, instead of the contracted new unit, respondent installed a five-year-old unit. 5. Complainant’s evidence at the hearing included her testimony that when the heater is turned on the unit begins banging loudly, and that the air conditioning never has worked. She also testified that the ductwork designed and installed by respondent, or respondent indirectly by a worker he had hired, was defective. 6. Complainant’s position on all points is corroborated by the dealer who sold the unit to the respondent, the worker who had been hired by the respondent, and the Registrar of Contractors Inspector Mike Nieves. 7. The complaint was assigned to Inspector Nieves, and he visited the complainant’s home on two occasions; once on May 30th, 2001, to perform a job-site inspection, and again on November 16th, 2001, in preparation for his appearance at the administrative hearing. He testified at the hearing. 8. The inspector corroborated the complainant’s complaints. He testified that the unit does make the loud banging noise, and the air conditioner does not blow cool air. He testified that these conditions existed at his job-site inspection and at his pre-hearing inspection. 9. Inspector Nieves issued a Corrective Work Order to the respondent dated May 30th, 2001. He directed the respondent to correct, repair or replace the unit by appropriate means, using a properly licensed contractor to do the work. The inspector added the last condition to his CWO due to the fact that the respondent never has had an HVAC specialty license, only a Class B License. The order directed the respondent to accomplish this task within 15 calendar days from the date of the CWO, which was a reasonable amount of time to do so. The respondent had failed to comply with the CWO by the time of the hearing. 10. Ms. Karin Sipe testified at the hearing. She was at the time material to this hearing the Secretary/Treasurer of the dealer which sold the complainant’s unit to the respondent. She testified that she sold the unit to the respondent in July of 2000. According to her it had been on their property only a few days when she sold it to respondent, but that it was, in fact, a 1998 model. Also, she sold it to respondent at a $50.00 discount owing to there being a small dent in the side of the unit. She further testified that since the respondent did not have the proper contractor’s license to install the unit, any warranty the complainant would have had is void. 11. Mr. Michael Escott testified. He is the person who respondent had hired to help with the installation. He testified that the respondent had designed the ductwork, and that the ceiling boxes are too big for the vent covers, and that the vent covers and duct work still are not completed. He too heard the banging noise. 12. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This hearing was held under authority of and in accordance with A.R.S. 32-1156, and A.R.S. 41-1092. 2. The respondent herein is charged with possible violations of A.R.S. 32- 1154.A.7., 23., and 3. 3. A.R.S. 32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this citation and complaint is A.A.C. R4-9-108, Workmanship Standards. The evidence clearly proves that the respondent violated this rule, and thereby violated A.R.S. 32-1154.A.3. His design and installation of the unit was unprofessional and defective in many ways. The unit was not the new unit complainant contracted to receive, and is defective. His ductwork is defective and the system has never been completely installed. 4. A.R.S. 32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractor’s laws of the State of Arizona, without valid justification, within a reasonable amount of time, after receiving a written directive from the registrar to do so. The CWO in this case is the written directive. It allowed a reasonable amount of time to make the corrections, and respondent failed to do so. Respondent violated A.R.S. 32-1154.A.23. 5. A.R.S. 32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. Respondent contracted to install and installed the heating/air conditioning unit in complainant’s home without having the appropriate license. Although there is no citation in this case for a possible violation of A.R.S. 32-1154.A.17., respondent’s actions were wrongful, and did void any warranty she had on the unit respondent improperly and incorrectly installed. Respondent violated A.R.S. 32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class B License number 137891 be suspended until such time as the registrar receives written proof that the respondent has caused the defective unit and system in complainant’s home to be removed and replaced with a same or comparable unit and system by an appropriately licensed contractor. It is further recommended that if the respondent properly accomplishes the above-described corrective action, on or before the effective date of this order (40 days after the date of service shown by the registrar’s certification on the order), then no license suspension shall take place and Citation and Complaint number S01-0129 shall be closed. It is further recommended that, in addition to the above-provided penalty, that respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. 32-1154.A.D. The failure of respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of this order shall result in the automatic revocation of respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with respondent, as defined by A.R.S. 32-1101.A.5. It is further recommended that in addition to the above-provided penalties, that as an express condition for the next annual renewal of respondent’s license, notwithstanding the existence or absence of any uniform assessment by the registrar then in effect, respondent shall be required to pay an additional $150.00 into the residential contractors’ recovery fund, as authorized by A.R.S. 32-1132.B. Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a continued suspension of respondent’s license until such payment is made and renewal issued. Done this day, November 23rd, 2001.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488