ALJDEC decisions subject to certification as final

09F-Y0182-ROC · Registrar of Contractors · 2010-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Estaban Escabar. 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’s Class C-39R License expired on September 1, 2009. 1. The Respondent performed HVAC work on the Complainant’s residence. 2. The Complainant was dissatisfied with the failure of the new HVAC system to properly cool his residence and requested that the Respondent correct the problems with the HVAC system... 3. When the Respondent failed to comply with the Complainant’s request to correct the problems with the new HVAC system the Complainant filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 5. Credible testimony and evidence established that the air flow to the south east bedroom/office of the Complainant’s residence was inadequate. 6. When the Respondent failed to comply with the terms and conditions of the written Corrective Work Order the Complainant retained an alternative licensed HVAC contractor to examine the problem and to properly comply with the terms and conditions of the Corrective Work Order. 7. The Complainant’s actions in retaining an alternative licensed contractor to properly correct his HVAC system so that it would adequately cool his house are found to be reasonable and justified under the circumstances. 8. Credible testimony and evidence established that the Complainant paid the alternative licensed HVAC contractor $515.65 to correct the Respondent’s deficient workmanship. 9. Credible testimony and evidence established that the sum of $515.65 was reasonable and justified under the circumstances. 10. The Respondent is found to be responsible for paying restitution to the Complainant for the Complainant’s costs of correcting the HVAC system to properly cool the Complainant’s residence. 11. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner and in failing to comply with the terms and conditions of a Corrective Work Order, are found to constitute a wrongful act. 12. Notice is taken of the Respondent’s prior 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. § 32-1154A(7) (Wrongful Act), A(23) (Failure to take appropriate corrective action) and A(3) namely; Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner)

RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order that the Respondent’s Class C-39R License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the Complainant the sum $515.65. It is further recommended that if the Respondent properly pays the sum of $515.65 to the Complainant as restitution for the cost of properly correcting the Complainant’s HVAC system on or before the effective date of this Order, then the above provided License revocation shall not take place and that this matter be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. 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 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, February 12, 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