ALJDEC decisions subject to certification as final

2009A-14920113-ROC · Registrar of Contractors · 2010-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2010 APPEARANCES: Complainant Sara Kennedy appeared on her own behalf. Wilfred Godinez appeared on behalf of Respondent Desert Canyon Mechanical. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Desert Canyon Mechanical (“Desert”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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. Desert is the holder of a Class K-39 license (No. 231630) issued by the Registrar of Contractors (“ROC”). Wilfred Godinez is the owner of Desert and its qualifying party. 2. On August 14, 2007, Luigi Ciulla, Complainant Sara Kennedy’s father and general contractor for the construction of the home at issue herein, contracted with Desert for Desert to install two 4 ton 13 SEER RUUD split HVAC systems at the home. See Exhibit B. 3. On April 1, 2008, Desert installed the HVAC systems at the home. 4. On September 11, 2008, Ms. Kennedy filed a complaint against Desert with the ROC alleging eighteen specific items of complaint. The complaint is incorporated herein by reference. 5. ROC Inspector Craig Williams investigated Ms. Kennedy’s complaint. 6. On September 30, 2008, Inspector Williams conducted a jobsite inspection. Ms. Kennedy and Mr. Ciulla were present for the inspection. Mr. Godinez was not present. 7. On October 2, 2008, following the jobsite inspection, Inspector Williams issued a Corrective Work Order (“CWO”) under which the ROC gave Desert 15 days to take corrective action as follows: The contractor is to correct the following items by the appropriate means and workman like (sic) manner: 1. The A/C on the west side of the house blows dirt into the house. Note: Loose duct work connections at cold air return blowing dust.

2. The bathroom on the northeast corner of the house does not get cool air. Note: The bedroom is warmer than the remainder of the house.

& 4. The contractor has looked at the unit and says there is a problem but he will not address it unless we pay him. Note: It is the contractor’s responsibility to correct any problem within the first 2 years without charge.

& 6. We feel that he needs to fix the problem, because we have only lived in the house for 2 ½ months. Note: As stated in items 3 & 4, it is the contractor’s responsibility for 2 years.

& 8. The contractor has been very unprofessional. Our blueprints called for 2 gas A/C units. He installed 1 gas unit and 1 electric. Note: Furnish units to be installed per plans and specs.

This inspector is unable to determine extent of training for the following item, no action required by the contractor: & 15. We feel he needs to be retrained because, at one point, he left the exhaust fan hanging from the ceiling, posing a risk to others.

The ROC has no jurisdiction over contractor’s communication skills, no action required by the contractor. 13. We had to argue with him to correct many mistakes that he had made. 16. When we would call him to correct his mistakes, he would ignore us for weeks.

The following items were corrected prior to this job site inspection, no action required by the contractor: 9, 10 & 11. When we requested for him to put sheet metal in the utility room, he initially refused, then he came back on 5 different occasions to put 5 small pieces of sheet metal on the floor. 12. We argued with him about moving the exhaust fan from inside the shower to above the toilet where it should have been.

Home owners (sic) main complaint: & 18. At this point, we would like issues in lines 1 and 2 addressed and the warranty work to be completed properly.

8. At the commencement of the hearing, Ms. Kennedy advised the tribunal that item numbers 2, 7, and 8 were no longer at issue. 9. Inspector Williams testified that he performed a pre-hearing inspection on August 10, 2010. Inspector Williams testified that at the pre-hearing inspection he did not notice the smell of dust emanating from the HVAC unit in the back bathroom and the end of the hall, where the cold air return is located, as he had at the initial inspection. Further, Ms. Kennedy’s father-in-law, who was present for the pre-hearing inspection, advised Inspector Williams that he did not notice the smell of dust either. When Inspector Williams was presented with the question of who was responsible for the construction of the plenum upon which the HVAC units are placed, he responded that the general contractor or a carpenter is responsible for such construction. 10. Ms. Kennedy contended at hearing that the issues with the HVAC unit are attributable to the improper construction of the plenum. However, Ms. Kennedy acknowledged at hearing that she does not know whether the general contractor, the carpenter, or the HVAC contractor is responsible for the plenum. Ms. Kennedy testified that she wants to be reimbursed by Desert for the amounts she paid another HVAC contractor to correct the problem. Ms. Kennedy submitted copies of invoices dated May 25, 2009 and July 3, 2009, in the respective amounts of $75.00 and $461.64. See Exhibits 1 and 2. However, Ms. Kennedy testified that she no longer lives in the home, but that when she was last there in June 2010, she still smelled dust. As such, by her own admission, the subsequent contractor did not remedy her complaint. 11. Mr. Godinez testified that Desert sealed the loose ductwork and that the smell is caused by the improperly constructed plenum. Further, another contractor has since performed work on the system. 12. All other enumerated items of the complaint were either corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Ms. Kennedy failed to sustain the requisite burden of proof. CONCLUSIONS OF LAW In this proceeding, Ms. Kennedy bears the burden to prove, by a preponderance of the evidence, that Desert is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7) and/or (A)(23) as charged by the ROC in its March 5, 2009 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Kennedy failed to meet her burden of proof as to all of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . .” The Administrative Law Judge concludes that the credible evidence of record failed to establish that Desert departed from or disregarded plans or specifications or any building codes. Therefore, the Administrative Law Judge concludes that Desert is not in violation of A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Desert with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible evidence of record failed to establish that Desert failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Desert is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Desert a CWO directing it to accomplish specified remedial work within a stated period of time. The evidence of record established that the gravamen of Ms. Kennedy’s complaint, i.e., the smell of dust, was not present at the pre-hearing inspection, and that the loose duct work has been sealed. Therefore, the Administrative Law Judge concludes that Desert is not in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes that the weight of the evidence failed to establish that Desert committed wrongful or fraudulent acts resulting in substantial injury. Therefore, the Administrative Law Judge concludes that Desert is not in violation of A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Desert’s license. The ROC’s Citation in Case Number 2009-14920113, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Desert’s license, and that the Citation issued in Case Number 2009-14920113, together with the Complaint upon which it is based, be dismissed. 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, September 14, 2010.

/s/ Sondra J. Vanella 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