ALJDEC decisions subject to certification as final

09F-5626-ROC · Registrar of Contractors · 2010-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent is the holder of a License No. 214834, a Class C-39R License, issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent removed an old A/C unit and installed a new two ton HVAC unit on the Complainant’s residence. 3. Credible testimony and evidence established that the Complainant experienced persistent problems with the new HVAC unit and repeatedly complained to the Respondent. 4. Finally, after nine or ten separate unsuccessful repair attempts, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. On June 5, 2009, he issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: Contractor to correct by appropriate means the following: 1. The new two ton H.V.A.C. in garage is not working properly never shuts off. 2. The duct work that is leaking air above the air handler in garage, above the ceiling in the attic. 3. The hole in the ceiling that the contractor cut, above the air handler. 7. When the Respondent failed to comply with the Corrective Work Order and failed to respond to the Citation and Complaint, the Complainant retained an alternative contractor to properly correct the new HVAC system installed by the Respondent. 8. The alternative licensed contractor examined the system and informed the Complainant that the new HVAC two ton unit installed by the Respondent was undersized and improperly installed and required removal and replacement. 9. The Complainant then caused the new two HVAC unit installed by the Respondent to be removed and replaced with a new three ton HVAC unit. 10. Credible testimony established that the new three ton unit is performing properly and that no further corrective action is required. 11. Credible testimony and evidence, presented at hearing, established that the two ton HVAC unit installed by the Respondent was undersized for the application and that the two ton HVAC unit was not installed in accordance with applicable workmanship and industry standards. 12. After the Complainant had caused the new two ton HVAC unit to be removed and replaced by the alternative licensed contractor, the Respondent was able to demonstrate to the Registrar of Contractors that the Citation and Complaint had been mailed to the wrong address and that the Respondent had not received proper notice of the Citation and Complaint. 13. On January 13, 2010, the Registrar issued an Order Quashing Citation and Complaint and Default Decision and Order. The Order provides, in pertinent part, as follows: On December 11, 2009, the Registrar issued a Default Decision and Order in this matter because Respondent failed to file a timely Answer to the Registrar’s August 27th Citation and Complaint. The Registrar has now determined that the August 27th Citation and Complaint and the December 11th Default Decision and Order was mailed to an incorrect address for Respondent. In view of the foregoing, and with good cause appearing, IT IS ORDERED that the August 27th Citation and Complaint and the December 11th Default Decision and Order be quashed. The Registrar will reissue a new Citation and Complaint in this matter is due course. 14. Credible testimony and evidence established that the removal and replacement of the two ton HVAC unit had occurred before the new Citation and Complaint was issued and mailed to the Respondent’s proper address. 15. Credible testimony and evidence also established that the Respondent had previously been allowed nine or ten opportunities to properly correct his deficient construction work on the Complainant’s HVAC system and that the Respondent had failed to correct his deficient workmanship despite the repeated opportunities to do so.. 16. The Complainant’s actions, in causing the new two ton HVAC unit to be examined by an alternative HVAC contractor and then removing and replacing the HVAC unit in the middle of a very hot summer in the Phoenix area, were shown to be reasonable and necessary under the circumstances. 17. Credible testimony and evidence, presented at hearing, established that the Complainant received no value for the $3,580.00 that he paid the Respondent. 18. The Complainant’s claims for damages in excess of the amount of money actually paid to the Respondent are found to be beyond mere restitution and are found to constitute a request for monetary damages. 19. The credible evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. §32-1154 A(23). 20. Notice is taken of the Respondent’s prior good License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 A(3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. A.R.S. §32-1156.01 provides as follows: After a hearing pursuant to this article, 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. RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s Class C-39R License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly paid restitution to the Complainant in the total sum of $3,580.00 for restitution for the Complainant’s damages in this matter. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. In the event of certification of this 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 the certification.

Done this day, May 11, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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