ALJDEC decisions subject to certification as final

2010A-14240334-ROC · Registrar of Contractors · 2010-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2010 APPEARANCES: Harly R. Hein and Janet L. Hein appeared personally. Arizona Mechanical, L.L.C., doing business as Arizona Mechanical and Appliance, was represented by its authorized representative, Charles Schuster. 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. At the commencement of the scheduled hearing, the parties stipulated to Janet L. Hein being added as a Co-Complainant in this matter. 2. Arizona Mechanical, L.L.C., doing business as Arizona Mechanical and Appliance (“Respondent”) is the holder of License No. 205576, a Class C39R contracting license issued by the Registrar of Contractors (“Registrar”). 3. On August 9, 2008, the parties entered into a written agreement for Respondent to install a roof mounted HVAC unit at Complainant’s residence located at 228 W. Winged Foot, Phoenix, Arizona. 4. Respondent’s written agreement, in the form of an invoice, failed to list Respondent’s contracting license number. 5. Complainants paid Respondent a $55.00 insurance deductible and an additional $740.00 for their share of the HVAC costs. Complainants’ home insurance policy paid the remainder of those costs. 6. On August 21, 2008, Respondent completed its scope of work. 7. In early September 2009, Complainants experienced water intrusion inside their residence after a heavy rainstorm. Complainants contend that the water entered their residence through the HVAC vent system. 8. Complainants contacted Scott Roofing to inspect the roof after the rainstorm. A decision was made to recoat Complainants’ roof. 9. Complainants allege that Scott Roofing, which is not an HVAC licensed contractor, advised them that Respondent’s installation of their HVAC unit was improper. Scott Roofing recommended that Complainants contact Republic Air Care, Inc. (“Republic”), an HVAC contractor, before Scott Roofing recoated Complainants’ roof. 10. Instead of contacting Respondent to inspect their HVAC unit to determine if any repairs were necessary, Complainants contacted Republic, who performed work on the unit on September 16, 2009. 11. According to Republic’s invoice dated September 16, 2009,[1] Republic performed the following scope of work: “Removed & Reinstalled A/C – replaced electrical whip.” The invoice does not explain if the unit was removed and reinstalled to permit Scott Roofing to coat Complainants’ roof without obstructions or if repairs were performed to Respondent’s alleged deficient workmanship. 12. Complainants paid Republic $425.00 for its work. 13. On October 14, 2009, Harley R. Hein, on behalf of Complainants, filed a written Complaint with the Registrar seeking restitution for the $425.00 paid to Republic, allegedly to correct Respondent’s deficient workmanship. The Registrar designated the Complaint as Case No. 10- 1424. The Registrar later re-designated the Complaint as Case No. 2010A-14240334. 14. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4- 9-108, and A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B). 15. The Registrar forwarded Case No. 2010A-14240334 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 16. Complainants unreasonably denied Respondent the opportunity to inspect and, if necessary, repair any alleged deficiencies with their HVAC system. Complainants’ contention that they did not contact Respondent because they were dissatisfied with its prior work is not adequate justification for denying Respondent the opportunity to inspect and repair, if necessary, any deficient workmanship. 17. Complainants’ request for restitution from Respondent for the $425.00 paid to Republic is not justified by the evidence of record. 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. A.R.S. § 32-1155(C) (1) supports the position that a licensed contractor be given the opportunity to inspect any alleged deficiencies in the contractor’s workmanship. Complainants deprived Respondent of the opportunity to inspect and, if necessary, repair Complainants’ HVAC unit by instead contacting Republic. 4. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list its contracting license number in the parties’ agreement. 6. Based upon the evidence of record, the Administrative Law Judge declines to recommend payment of restitution to Complainants by Respondent pursuant to A.R.S. § 32-1156.01. RECOMMENDED ORDER Respondent’s License No. 205576 shall be suspended on the effective date of the Order entered in Case No. 2010A-14240334 until Respondent submits written proof to the Registrar that Respondent has become fully compliant with the requirements of A.R.S. § 32-1124(B), and the Registrar approves such compliance. If Respondent provides the Registrar with written proof that Respondent has become fully compliant with the requirements of A.R.S. § 32- 1124(B) on or before the effective date of the Order entered in Case No. 2010A-14240334, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010A-14240334 shall be closed. 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, June 8, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Republic’s contracting license number is not listed on the invoice.

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