ALJDEC decisions subject to certification as final

10F-0027-ROC · Registrar of Contractors · 2010-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 29, 2010 APPEARANCES: Howard and Dawn White appeared personally. Juan Pablo Garcia, doing business as Same Day Air, did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Juan Pablo Garcia, doing business as Same Day Air (“Respondent”), is the holder of License No. 244205, a Class C-39R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On July 2, 2009, Howard and Dawn White (“Complainants”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent for the purchase and installation of a new 3-ton heat pump package at their residence located at 6820 W. Turquoise Avenue, Peoria, Arizona. The Registrar designated the Complaint as Case No. 10- 0027. 3. Complainant’s Complaint alleges the following deficient workmanship performed by Respondent: 1) Disconnect box overheated damaged fuses. 2) Conduit had no connectors to unit or disconnect box. 3) Drain line draining into vent pipe against code. 4) Old wire whip used to install unit – Paid for a new one. 5) Replace thermostat.

4. In their Complaint, Complainants listed the possible resolution that they were seeking: “Reimburse us the amount of $570.87 that was paid to another contractor to properly re-install the heat pump unit.” 5. The Registrar issued a Citation and Complaint in Case No. 10-0027 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (7), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 6. The Registrar forwarded Case No. 10-0027 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The Registrar issued a Notice of Hearing in Case No. 10-0027 advising the parties of the time, date, and location of the evidentiary hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 8. The commencement of the hearing was delayed 15 minutes to allow for the late arrival of Respondent or an attorney authorized to represent him. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 9. On April 19, 2009, Complainants reviewed Respondent’s internet advertisement, which included, among other things, the following specifications: SEER 3 TON HEAT PUMP PACKAGE UNIT $2700.00 + TAX included (with all Installs) -Programmable digital thermostat -A new stand and transition if needed -Disconnect box and whip -10 year Warrantee [sic] for compressor and all parts

10. Respondent’s internet advertisement properly listed his contracting license number, including the prefix “ROC.” 11. On April 22, 2009, Complainant Dawn White executed a written estimate/contract presented by Respondent for Respondent’s performance of the following scope of work for a contract price of $2,950.00: new 3-ton heat pump package new digital stat new disconnect box new stand new transition

12. Respondent’s written estimate did not include his contracting license number. 13. Respondent had also presented his business card to Complainants, which did not list his contracting license number. 14. On June 28, 2009, Complainants’ heat pump unit installed by Respondent did not work properly. Complainant tried unsuccessfully to contact Respondent. 15. Due to the high temperatures and their inability to contact Respondent, Complainants contacted Ferguson Mechanical, L.L.C. (“Ferguson”) for an emergency service call for the unit. 16. On June 28, 2009, Ferguson examined Complainants’ heat pump system and made the following diagnoses: Disconnect box over heating & fuses are bad Drain line draining into vent pipe going up hill Conduit has no connectors to unit & disconnect box *Against code to have drain line going into vent pipe*

17. Ferguson supplied and performed the following materials and services: new programmable t-stat 60 amp disconnect box 35 amp fuses wipe conduit repipe drain line + vent & trap

18. Upon completion of its work, Ferguson presented Complainants with a Service Order Invoice (“Invoice”) in the amount of $570.87, which Complainants paid. Ferguson’s Invoice properly contained its contracting license number. The Invoice also noted that “Unit cooling and draining at this time.” 19. Respondent’s failure to perform his scope of work in a workmanlike manner constituted a wrongful act resulting in substantial injury to Complainants. The breakdown of their heat pump during hot weather coupled with their inability to reach Respondent for repairing the deficient system constituted an emergent situation warranting their calling Ferguson to perform the needed repairs. 20. A review of the Registrar’s official electronic records reveals that Respondent’s contracting license is current. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. Pursuant to A.R.S. § 32-1156.01, the Administrative Law Judge recommends that Respondent pay Complainants restitution in the amount of $570.87. The above Findings of Fact support this conclusion and recommendation. RECOMMENDED ORDER Respondent’s License No. 244205 shall be suspended on the effective date of the Order entered in this matter until Respondent submits written proof to the Registrar, and the Registrar approves such proof, that Respondent has paid Complainants restitution in the amount of $570.87 and has become fully compliant with the provisions of A.R.S. § 32-1124(B) on or before the effective date of the Order entered in Case No. 10-0027. If Respondent submits written proof to the Registrar that Respondent has paid Complainants restitution in the amount of $570.87 and has become fully compliant with the provisions of A.R.S. § 32-1124(B) on or before the effective date of the Order entered in Case No. 10-0027, and the Registrar approves proof of such payment and compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s contracting license shall be placed on probation for a period of 180 days commencing on the effective date of the Order entered in Case No. 10-0027 or the date that the Registrar approves proof that Respondent has paid Complainants the above-provided restitution and that Respondent has become fully compliant with the provisions of A.R.S. § 32-1124(B), whichever is later. 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 will be 40 days from the date of that certification.

Done this day, April 19, 2010.

/s/ Brian Brendan Tully 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