ALJDEC decisions subject to certification as final

08F-T1023-ROC · Registrar of Contractors · 2009-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2009; 9:00 a.m. APPEARANCES: Complainant Mr. Dean Morgan Fox represented himself. Respondent Apple Plumbing and Cooling, LLC was represented by Mr. Mike Patterson, General Manager. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the record as a whole, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Mr. Dean Morgan Fox filed a Complaint against the Respondent Apple Plumbing, LLC in the Registrar of Contractors’ office alleging several items of poor workmanship and unprofessional conduct on the part of Respondent when installing a new heat pump, ductwork, and re-plumbing at the Complainant’s Tucson residence. 2. The Complaint was assigned to Registrar of Contractors Inspector Greg Koeneman who conducted a job site inspection and as a result of his findings issued a written Corrective Work Order (CWO) to Respondent, directing the Respondent to make several corrections to the work within 20 calendar days, which was a reasonable amount of time. 3. Respondent returned and attempted to comply with the CWO within the time allotted. There is substantial evidence that Complainant substantially impaired Respondent’s ability to perform the corrective work, including threatening to call the police if Respondent returned to the job site. Other offers to informally settle the dispute were extended from Respondent to Complainant and refused. 4. There are other disputes that are merely differences of opinion between the parties as to what was the scope of the contract, and Inspector Koeneman could not make a determination as to those. The hearing evidence provides no more insight into those disputes. 5. Respondent still has not corrected the following items in the CWO: ##9 (11 and ## 13 (16 should be confirmed as meeting all code requirements, if not already; #17 as agreed by Respondent all damaged insulation must be replaced; ##20, and 21, Respondent must properly reroute the attic plumbing without splices to meet all code requirements. 6. Inspector Koeneman testified the Citation and Complaint for possible violation of A.R.S. § 32-1154.A.17 is in error, and there is no evidence to support that allegation. 7. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156, and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.2, 7, 17, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. The greater weight of evidence proved that Respondent had violated A.A.C. R4-9-108 and therefore A.R.S. § 32-1154.A.3 and A.R.S. § 32- 1154.A.2 in some instances in the installation of the heat pump, ductwork and re-plumbing of Complainant’s house. 4. There is no evidence of any violation of A.R.S. § 32-1154.A.17. 5. Complainant denied Respondent reasonable access to make the corrections contained in the Inspector’s CWO, and therefore there is no violation of A.R.S. § 32-1154.A.23. 6. There is no substantial evidence of any wrongful or fraudulent act in violation of A.R.S. § 32-1154.A.7 independent of the other violations already concluded to have occurred. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class C39R License number 204832 and Class C-37R License number 204833 be suspended until the Registrar of Contractors receives written notice, satisfactory to the Registrar, that Respondent has returned and properly corrected the items of the CWO enumerated in Finding of Fact #5 hereinabove. It is further recommended that in the event the Respondent properly accomplishes the above-described corrective work on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspensions shall not occur and Citations and Complaints T08-1023 and T08- 1023(W) shall be closed. Complainant is advised that any unreasonable denial of access to the Respondent or the Respondent’s proper agents or employees to perform the required corrective work may be treated as compliance by the Respondent and may result in the case being closed without discipline, and the Complainant may be denied access the Residential Contractor’s Recovery Fund, even if otherwise eligible. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification.

Done this day, July 24, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

-----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com