ALJDEC decisions subject to certification as final

07F-M2339-ROC · Registrar of Contractors · 2008-02-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2008 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by its attorney, David West. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. Complainant contacted Respondent to check out his air conditioner system. Complainant alleges that Respondent’s work on the air conditioner diagnosis procedure constituted violations of the State’s Contracting laws and these issues are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant testified that he was experiencing some type of problem between the operation of the air handler in the attic and the exterior air conditioning unit. He initially contacted Precision Air (“Precision”) to come to his home to diagnosis and correct the problem. b. According to Complainant, Precision advised him that they did something to the control board for the system, in order to resolve the problem. Nevertheless, they further advised that their action was merely a temporary fix and that the control board would eventually need replacement.

c. For some reason, Complainant did not have a lot of confidence in the work performed by Precision and therefore, contacted Respondent to come to his home to examine what Precision had done. d. Complainant testified that he was not advised by Respondent’s agent on the phone what the charges would be. e. When Respondent’s qualifying party, Frank Gagliardi (“Gagliardi”) appeared at the home, he advised Complainant that he wanted to examine the outside units. Complainant claims that Gagliardi did not advise what the cost would be to “check-out” the outside units. Nevertheless, Complainant admits that he did authorize the work. f. Complainant testified that after the “check-out” of the exterior units, Gagliardi advised that the system was low on Freon. Complainant refused to pay for a Freon charge and continued to request that Gagliardi go into the attic to examine the air handler system. g. Uncontroverted evidence of record showed that Gagliardi advised Complainant that the charge to go into the attic, and diagnose the air handler portion of the system, would be $225.00. Complainant approved this procedure and charge by Respondent. h. Gagliardi could find nothing wrong with the air handler system, even after the work performed by Precision. At the end of the entire service call at Complainant’s home, Gagliardi presented Complainant with a bill for $329.99. Complainant signed the invoice and paid the billing in full. i. Notwithstanding his full payment of Respondent’s invoice, Complainant was still not satisfied that his system was in proper working order and thus, he contacted another company, Walker Keep Cool (“Walker”), to inspect his system. Although Walker did not appear at the instant hearing, his invoice was admitted into evidence as Complainant’s exhibit no. 1. It should be noted that the invoice from Walker failed to comply with Registrar of Contractors’ requirement regarding name of the contractor and Registrar of Contractors’ license number. Complainant was not sure whether Walker was, in fact licensed, and the license status of Walker cannot be determined from the face of the invoice. j. Walker charged Complainant $140.00 for its check on the system. According to Walker’s invoice, everything checked-out fine, including the Freon level. k. After the Walker visit, Complainant decided that Respondent had overcharged him and filed the instant Complaint with the Registrar of Contractors. l. Evidence of record established that on the date the work was performed on Complainant’s home, Respondent’s license was suspended, for failure to renew its bond. Gagliardi testified that he was very busy at the time in question and was unaware that his bond had lapsed. As soon as Complainant advised him about the bond suspension, he took immediate action to reinstate his bond. m. Gagliardi testified that he did advise Complainant about the charges for the service call and the cost to check-out the outside units. Furthermore, he indicated that he advised Complainant about the $225.00 charge to check out the system in the attic and Complainant approved this procedure and cost. n. Respondent argues that the charge of contracting while the license was suspended should not be found in this matter, due to the fact that the work performed was under $1,000.00.

3. In light of the fact that there was no adequate showing that Walker was a licensed contractor, no significant weight was given to its invoice. For that matter, even if Walker was licensed, since Walker did not appear at the hearing, to be subject to cross examination by Respondent, its contrary conclusion regarding the Freon level was not sufficient to show that Gagliardi’s finding on the Freon was erroneous.

4. There was no adequate evidence presented to establish that anything in Respondent’s billing or action at the jobsite constituted a violation of the spirit and intent of the State’s Contracting laws. Complainant failed to sustain the requisite burden of proof on this issue.

5. Respondent did perform contracting work while its license was under suspension, for lack of a proper bond. Contrary to Respondent’s assertions, the activity in question constituted a violation of the applicable charged section of the State’s Contracting laws, despite the fact that the work in question was less than $1,000.00.

6. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

7. By way of further mitigation, it should be noted that as soon as Respondent became aware that the license was under suspension for failing to have an active bond, Respondent reinstated its bond within two (2) days of being notified by Complainant regarding the bond suspension. Thus, under all of the facts and circumstances presented herein, Respondent should not be subject to anything more than a minimal civil penalty for contracting while the license was suspended.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated A.R.S. §32-1154A (7), as charged in the Citation.

3. A.R.S. §32-1121(14), otherwise known as the “handyman exemption,” provides, in pertinent part, for an exemption from licensure for work that is performed under $1,000.00. However, this section of the State’s Contracting laws specifically provides that it does not apply to licensed contractors.

4. Respondent’s work on Complainant’s project occurred during the period of time when its license was suspended for lack of a bond. This activity constitutes a violation of A.R.S. §32-1154A (18).

5. A.R.S. §32-1154E provides, in pertinent part, that “registrar shall impose a civil penalty of not to exceed $1,000.00 on a contractor for each violation of subsection A, paragraph 18 of this section…”

RECOMMENDED ORDER

In view of the foregoing it is recommended, that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154E. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, 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 in A.R.S. §32- 1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, February 28, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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