ALJDEC

02F-M0021-ROC · Registrar of Contractors · 2002-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22, 2002 APPEARANCES: Sharleen Pullen, Complainant; Tony De Santis, Respondent ADMINISTRATIVE LAW JUDGE: Wendy S. Morton _____________________________________________________________________

The issue presented in this matter is whether Respondent De Santis Southwestern Mechanical, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent De Santis Southwestern Mechanical, Inc. is the holder of a Class C-39R license (No. 123939) issued by the Registrar of Contractors (“ROC”). Tony De Santis is Respondent’s qualifying party. Complainant Sharleen Pullen owns and occupies a home on 619 West 5th Avenue, Apache Junction, Arizona (“Home”).

In 2000, Complainant qualified for funds under a City Grant program to build a 12’ by 16’ addition to the Home. The new addition was to serve as a bedroom for Complainant’s three young sons. Under the grant, the project was to take 35 days to complete. Complainant hired Oglesby Construction (“Oglesby”) to construct the addition. Oglesby started construction on September 15, 2000. Respondent was a subcontractor for Oglesby. Respondent installed the air conditioning system for the addition in the Home on October 17, 2000. Oglesby completed construction the addition in December, 2000. Complainant stated that from the time the boys moved into the room there was a problem with the ventilation. Complainant described the room as “cold, like a tomb” in the winter. She stated that the boys could not sleep there. In December, 2000, Complainant advised Oglesby and Respondent of the problem. Throughout January and February, 2001, Respondent attempted to correct the problem with the heating to no avail. In March, 2001, Respondent agreed that the return and supply lines were too small and made a verbal offer to Complainant to fix the problem for $250.00, stating “he did not work for free.” Respondent stated that he did not hear anything from Complainant regarding this offer. According to Complainant, she did not act on the offer as she felt that the problem should be corrected at no charge. Complainant testified that in the summer, the problem with heating the addition turns into a problem with cooling it. Complainant testified that the summer of 2001 was a “living nightmare” with her sons being forced to sleep under a fan in the middle of the living room because their bedroom could not be cooled. On July 9, 2001, Complainant filed a complaint against Respondent with the ROC. Inspector Paul Terek was assigned to investigate the Complaint. Inspector Terek is certified with the International Conference of Building Officials as an Inspector 1. He has been a State inspector for one and a half years. Prior to that, he held Commercial and Residential licenses in electrical and air conditioning and operated a general contracting business, through which he contracted for various municipalities and governmental agencies. On July 18, 2001, Inspector Terek conducted a jobsite inspection at the Home. Complainant, Inspector Terek, Tony De Santis for Respondent, Curtis Ogelsby and Mickey Frazier for the general contractor were present during the inspection. At the time of the jobsite inspection, Complainant and Respondent agreed to add another register to the addition; therefore, a Corrective Work Order (“CWO”) was not issued at that time. On August 21, 2001, Inspector Terek conducted a follow-up inspection. Although Respondent had installed a register, it was still not adequate to cool the room. Inspector Terek testified that the temperature in the room was 89 degrees. The minimum industry standard is 82 degrees. Respondent agreed that the register was inadequate. On August 21, 2001, Inspector Terek issued a Corrective Work Order (“CWO”) under which the ROC gave Respondent 15 days increase the performance of the air conditioning system in order to meet minimum industry standards. On September 17, 2001, Complainant contacted the ROC and informed Inspector Terek that although Respondent had done some additional work, the situation was still unsatisfactory. Complainant requested a hearing. On December 11, 2001, the ROC issued a Citation and Complaint charging Respondent with violations of A.R.S. § 32-1154(A)(7) (wrongful or fraudulent act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action) and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards). Inspector Terek conducted a prehearing inspection on March 22, 2002. He stated that the major problem with the system was that Respondent had tapped into the kitchen supply branch to feed the addition. According to Inspector Terek, the kitchen supply branch was not large enough to support a second room the size of the addition. Inspector Terek testified that this was a “significant defect” and that the air conditioning work did not meet minimum industry standards. Inspector Terek testified that the return to the air conditioning unit on the roof was completely disconnected from the rest of the system. This caused all of the air that cooled or heated the house to come directly from the attic into the house. Inspector Terek further found at least one poorly sealed attachment to the Unit. There was also at least one improper connection at the base of the return air riser. Inspector Terek’s testimony was corroborated by Complainant’s expert Lelon Reed, a registered contractor since 1977 and an expert in commercial refrigeration. Mr. Reed agreed that there is insufficient air in the branch fitting which cools the kitchen and the new addition. Based on the foregoing, the Administrative Law Judge finds, on the weight of the credible evidence presented, that Respondent’s workmanship on the air conditioning system does not meet minimum industry standards and should be corrected by appropriate means. The Administrative Law Judge further finds that Respondent failed to comply with the CWO, and that no valid justification exists for that failure. CONCLUSIONS OF LAW 1. In this administrative proceeding Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its December 11, 2001 Citation and Complaint. 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). 2. The Administrative Law Judge concludes that Complainant sustained her burden to prove that Respondent failed to comply with ROC’s minimum workmanship standards for the installation of and subsequent corrective work performed on Complainant’s air conditioning system. The Administrative Law Judge concludes that in so doing, Respondent violated A.R.S. § 32-1154(A)(3) as charged by the ROC in its Citation and Complaint.

3. The Administrative Law Judge further finds that Respondent violated A.R.S. § 32-1154(A)(7) and (A)(23) as charged by the ROC by failing to perform appropriate corrective work and by engaging in a wrongful act which substantially injured Complainant. 4. Based on the foregoing, it is appropriate for the ROC to impose discipline against Respondent’s Class C-39R license. 5. The ROC’s December 11, 2001 Citation and Complaint advised Respondent that in the event of a finding of a violation against it, Respondent’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Respondent in the ROC’s official records. Those records revealed that Respondent has not been the subject of any final ROC disciplinary orders within the past two years. The Administrative Law Judge considered this disciplinary record as a mitigating factor when determining the extent of appropriate recommended discipline for this matter. 6. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Respondent’s Class C-39R license subject to the condition that Respondent can avoid such suspension by accomplishing appropriate and effective remedial work on Complainant’s air conditioning system. 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 C-39R license (No. 123939) shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the air conditioning system. It is further recommended that if Respondent accomplishes the above-described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint shall be closed.

Done this day, April 10, 2002.

______________________________________ Wendy S. Morton Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826