ALJDEC decisions subject to certification as final

07F-M0225-ROC · Registrar of Contractors · 2007-05-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2007 APPEARANCES: John Moore appeared on his own behalf. Keith Kaminsky appeared on behalf of Respondent Kaminsky Builders, L.L.C., doing business as Air Command. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Kaminsky Builders, L.L.C., doing business as Air Command, is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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. Kaminsky Builders, L.L.C., doing business as Air Command (“Air Command”), is the holder of a Class C-39R license (No. 205393) issued by the Registrar of Contractors (“ROC”). Keith Kaminsky is Air Command’s qualifying party. 2. On or about January 24, 2006, Air Command submitted a proposal to David Moore, Complainant John Moore’s son, with whom he co-owns a home, to install a “14 SEER American Standard split HP system w/ 10 yr. compressor, yr parts, 1 yr labor warranty. Includes install, removal, disposal, and installation of additional return run.” See Exhibit 1, page 1. The proposal price was $5,999.97. Id. David Moore accepted Air Command’s proposal and paid a deposit in the amount of $2,999.98. Id. The work was scheduled for January 26, 2006. Id. 3. On January 26, 2006, Air Command installed the new unit at the Moore residence. David Moore paid Air Command in full. See Exhibit 1, page 2. 4. John Moore credibly testified at hearing that the unit installed by Air Command began to exhibit problems immediately. John Moore testified that it would not heat the home above 68 degrees, and not cool the home below 81 degrees. John Moore further credibly testified that he contacted Air Command several times in order to correct the problems beginning on January 28, 2006 through July 24, 2006. 5. On July 24, 2006, an Air Command technician that had not previously been to the Moore residence, determined that the air handler had been incorrectly installed. John Moore credibly testified that the technician attempted to re-position the air handler himself and in so doing, dumped the contents of the secondary drain pan, which was full of rusty water. The rusty water ran through a light fixture into the home. 6. On July 25, 2006, John Moore called Mr. Kaminsky, who stated that he would make the necessary repairs the following day at 5:30 p.m. John Moore advised Mr. Kaminsky that he would be seeking an evaluation by another contractor. Mr. Kaminsky did not appear at the scheduled time and did not respond to phone calls from David Moore. 7. On July 27, 2006, David Moore contacted John’s Refrigeration (“John’s”) to evaluate the unit. John’s performed that evaluation and found the following: Found air handler pitched opposite direction of drain. Found panel not on. Return air is kinked and severely restricted. Prior tech did not put caps on service ports. Need to redo return. Need to level unit. Found primary condensate drain disconnected. Need to hook up condensate.

See Exhibit 3. 8. John’s charged David Moore $250.00 for the evaluation. See Exhibit 3. John’s took photographs of their findings as outlined on their service invoice. See Exhibits 4, 5, and 6. David Moore and his family spent four nights, July 27, 28, 29, and 30, 2006 in a hotel at a cost of $317.60. See Exhibit 7. 9. On July 31, 2006, John’s performed the work it had suggested in its evaluation of the unit. John’s installed a new secondary drain pan, leveled the unit for proper drainage, ran a new 18” return to the unit, hooked up the condensate lines, charged the unit with 1 lb., 8 oz. of R-22, inspected the unit, and determined that the unit was properly operating. See Exhibit 8. John’s took several photographs of the corrective work it performed. Id. John’s charged David Moore $1,650.68 for this work. Id. 10. On July 31, 2006, John Moore filed a complaint against Air Command with the ROC. In his complaint, John Moore alleged the above delineated findings, and requested the following: i) Payment in full for a second certified American Standard registered contractor to identify and correct all system installation and operation deficiencies resulting from Air Command’s initial installation and follow-up actions; ii) Payment in full to identify and correct all structural, electrical, wall, ceiling, insulation, mold, drywall, finishes (such as painting and flooring to match existing) resulting from the improper air handler installation and associated water damage; iii) Payment in full for a hotel (for the home occupants) until the American Standard unit is operational and safe; iv) Payment in full to provide warranty service by another certified American Standard registered contractor to include 10 years on the compressor, 5 years for parts and 2 years labor as stated on Air Command’s invoice; v) Payment for lost work. The numerous incompetent Air Command home visits (including no shows) to correct system problems were worthless; and vi) Payment for ruined professional work clothes damaged by rusty water flowing from the air handler drip pan through the laundry room ceiling and towels and sheets to mop up rusty water. 11. ROC Inspector Ted Gerold investigated Mr. Moore’s complaint. 12. On November 7, 2006, Inspector Gerold conducted a jobsite inspection. Present for the inspection were John Moore and his wife, Mark Marsh, and Keith Kaminsky. 13. On November 7, 2006, following the jobsite inspection, Inspector Gerold issued a letter to the parties advising of the following: Upon filing a complaint with this agency it is incumbent upon the complainant to show proof of violation by a contractor. This agency cannot request a citation against a contractor’s license unless sufficient evidence is submitted or otherwise obtained to justify such action. Therefore, it appears appropriate that we close your complaint for the following reason(s): In this inspector’s opinion, insufficient evidence was provided to show this contractor’s responsibility.

(Emphasis in original.)

14. Inspector Gerold testified that he has no opinion as to the actual work performed on the air conditioning unit or its installation, as he did not inspect the unit because another contractor had already performed work on the unit. Inspector Gerold further testified that as to the other complaint items, in his opinion, the cracking at the ceiling was too far from the air handler location to have been caused by excessive vibration, and he did not observe any water staining in the bathroom or laundry room. 15. At hearing, John Moore indicated that the only items of complaint he wished to pursue in this forum were a) reimbursement for the cost of John’s to identify and correct the issues with the unit, and b) reimbursement for the hotel expense. John Moore testified that there have been no service calls for the unit since John’s performed its work on July 31, 2006. 16. Mr. Kaminsky contended that John Moore embellished the facts and that there are many discrepancies in his testimony, however, the few discrepancies cited by Mr. Kaminsky were not material in nature. Mr. Kaminsky asserted that Air Command was never offered an opportunity to make the necessary repairs, that he does not believe any damage was caused by Air Command’s installation of the unit, that there were no efficiency problems, no restrictions, and that Air Command was not contracted to replace the drain pan. Mr. Kaminsky testified that he grew irritated with David Moore’s comments, that he believes many HVAC contractors are unethical, the occupants of the home stayed in a hotel “to build a case”, and that hearsay should be inadmissible in this administrative forum. Mr. Kaminsky indicated during his closing argument that he wished to present additional evidence regarding conversations with his employees. Notwithstanding the fact that closing argument is an inappropriate time to present new evidence, Mr. Kaminsky was given the opportunity to do so, yet declined such opportunity. 17. The Administrative Law Judge finds that Air Command performed substandard and improper work during its installation of the air conditioning unit at the Moore residence, and that Air Command has not acted in good faith to resolve its deficiencies. Mr. Kaminsky’s purported affirmative defense regarding a lack of an opportunity to correct the deficiencies, is less than credible and not supported by any probative or substantial evidence. 18. The Administrative Law Judge further finds, based on the weight of the credible evidence presented at hearing, that John Moore is entitled to restitution from Air Command in the amount of $1,900.68, which represents the combined total of the amounts paid to John’s for its evaluation of the unit and the repair work to the unit.[1] Reimbursement for the hotel expense is more in line with damages and is beyond the jurisdiction of this tribunal to award. CONCLUSIONS OF LAW In this proceeding, John Moore bears the burden to prove, by a preponderance of the evidence, that Air Command is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), and/or (A)(7) as charged by the ROC in its January 25, 2007 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that John Moore met his burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . . in any material respect which is prejudicial to another without consent of the owner . . .” The credible evidence of record established that Air Command departed from plans and specifications by failing to properly install the unit. Therefore, the Administrative Law Judge concludes that Air Command violated A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Air Command with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Air Command failed to perform its work at the Moore residence in a professional and workmanlike manner as evidenced by the deficiencies in the installation and Air Command’s own technician’s acknowledgement of the improper installation of the air handler. Therefore, the Administrative Law Judge concludes that Air Command violated A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Air Command committed wrongful acts that substantially injured the Moores by failing to properly install the unit, by failing to perform its work in a professional and workmanlike manner, and by failing to correct the deficiencies. Therefore, the Administrative Law Judge concludes that Air Command violated A.R.S. § 32- 1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Air Command’s Class C-39R license. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Air Command’s Class C-39R license. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Air Command’s license without providing a condition to reduce or eliminate same. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Air Command’s Class C-39R license subject to the condition that Air Command can avoid such suspension by paying restitution to John Moore in the amount of $1,900.68. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Air Command’s Class C-39R license (No. 205393) shall be suspended until the ROC receives written proof that Air Command has paid restitution to John Moore in the amount of $1,900.68. If the ROC receives written proof that Air Command has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. M07-0225 shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, May 16, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this____ day of May, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] An Administrative Law Judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. A.R.S. § 32-1156.01.

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