ALJDEC decisions subject to certification as final

08F-T1209-ROC · Registrar of Contractors · 2009-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2009; 1:30 p.m. APPEARANCES: Complainants Ms. Rosie Gamulo (now Bauer) and Mr. Mark Bauer represented themselves. Respondent Mr. Richard Lobato Perez doing business as Richards’ Custom Sheet Metal, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings. Testimony was heard and other evidence admitted to the record and based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent Mr. Richard Lobato Perez doing business as Richard’s Custom Sheet Metal is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona holding Class C-39R License number 084398. 2. Complainants Mr. Mark and Ms. Rosie Bauer (formerly Gamulo) brought this Complaint against Respondent as a result of the work performed on the Bauers’ Tucson residence in April 2008. The parties contracted for Respondent to install new fabricated duct work and a roof jack for $1,200.00. 3. On April 3, 2008, immediately after completion of the job, the Complainants perceived that the work was defective and telephoned Mr. Perez to as him to return to the job site. According to Ms. Bauer, the man who was to have installed the evaporative cooler on the roof encountered some problems with the jack. The parties agreed that Mr. Perez would come to the job site the next morning between 8:00 a.m. and 8:30 a.m. to inspect and see what, if anything needed, to be corrected. 4. Mr. Perez kept the appointment and appeared the next morning, April 4, 2008. Complainants broke the appointment and were not home. Mr. Perez tried to phone the Complainants, but there was no answer to his call. Since Respondent’s company policy is not to perform work on a home in the absence of the homeowners, Mr. Perez left a note on the Complainants’ door and left the premises. 5. On April 7, 2008, Complainants separately telephoned Mr. Perez to inquire why he had not performed the corrective work the Complainants felt he needed to perform. Mr. Perez told them that he had come to the house for the Complainants to show him what needed to be done, but no one was home. They did not accept that Mr. Perez could not perform work while they were away because other contractors did. Mr. Perez tried to explain to them about insurance considerations and that he had no idea what they were saying needed to be done until someone showed him. 6. According to Mr. Perez, Complainants wanted Mr. Perez to return that evening at 5:00 p.m. Ms. Bauer denied this in her testimony. Mr. Bauer testified that he explained that he had other customer obligations for that time, but could return the next Wednesday, April 9, 2008 at 8:00 a.m. This was unacceptable to Ms. Bauer and she terminated the phone conversation with Mr. Perez. Ms. Bauer testified contrarily to Mr. Perez, that Mr. Perez said he could not return for a month. 7. The very next day, April 8, 2008, the Complainants filed a complaint with the Better Business Bureau and this Complaint with the Arizona Registrar of Contractors, alleging defects in the duct work and jack installation. 8. Nine days after filing the Complaint with the Registrar, on April 17, 2008, the Complainant hired Rincon Air Conditioning and Heating Company, Inc., another licensed contactor, to redo the duct work and jack. 9. Rincon’s employee, Mr. Chris Tinsley, performed the work. He testified at the hearing that his company, as a matter of policy, is unwilling to work on another contractors’ work because they do not want to accept responsibility for another contractor’s work. Therefore Rincon was willing only to completely replace the work with its own work. Mr. Tinsley testified to some aspects of Mr. Perez’s work that he considered incorrect. He said some measurements were wrong resulting in blockage. However, in one photograph which was admitted into the record, a 12” opening was blocked only by about one inch, and Mr. Tinsley could not definitely say that that would impede performance. Mr. Tinsley placed a level on one part of the work, and a photograph shows the level bubble off center. 10. Mr. Theodore Brodsky was called by Complainants to testify. Mr. Brodsky has many years experience in HVAC work. He testified that he inspected the Respondent’ work. He testified that some barometric adapter leaves did not fully open, and that one opening in the duct work was offset. He testified that he would need to perform mathematical measurements to determine how much the air flow was impeded, and he had not performed such measurements. He testified that the duct work could have been installed a little straighter. 11. Since Complainants did not wait more than nine days after filing the Complaint to have another contractor redo the project, there was nothing for any Registrar of Contractors Inspector to inspect, and Respondent was never given a reasonable opportunity to access the job site to make any corrections that might have been necessary. 12. Mr. Perez adamantly maintains that his work was not defective. Witnesses for the Complainant gave some testimony that can only be described as rather lukewarm criticism of Mr. Perez’s work, and that the Respondent’s work was completely redone only out of consideration that Rincon wanted to warrantee its work and its work alone. 13. At most it can be found that there were some minor adjustments to Respondent’s work that could have been easily performed without completely removing the work and replacing it. Mr. Perez was never given the opportunity to do this. 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.7, and 3 (namely A.A.C. R4-9-108, workmanship Standards). 3. The greater weight of evidence proved that Respondent’s work did have some minor workmanship defects that could have been easily corrected short of completely replacing the work. Respondent did violate A.A.C. R4-9-108, and A.R.S. § 32-1154.A.3. 4. There is no evidence of any wrongful or fraudulent action on the part of Respondent in the facts of this case in violation of A.R.S. § 32-1154.A.7 independent of the minor installation defects. 5. Complainants denied the Respondent reasonable access to perform any corrections to his work which should be treated as compliance by the Respondent with the applicable workmanship standards, without the imposition of any discipline on the license. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T08-1209 be closed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, April 28, 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 Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com