ALJDEC decisions subject to certification as final

2010A-25065507-ROC · Registrar of Contractors · 2010-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 2, 2010 APPEARANCES: Plasmaglow was represented by its authorized representative, Eugene Overline. Sun Devil Mechanical, Inc. 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. Sun Devil Mechanical, Inc. (“Respondent”) is the holder of License No. 169649, a Class L-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On January 22, 2010, Plasmaglow (“Complainant”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on an HVAC project at Complainant’s business in Gilbert, Arizona. The terms of the Complaint are incorporated herein by reference. 3. The Registrar originally designated Complainant’s Complaint as Case No. 10-2506, but later re-designated the Complaint as Case No. 2010- 25065507. 4. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (2), (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2010-25065507 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar issued a Notice of Hearing in Case No. 2010-25065507, which advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 7. The commencement of the scheduled hearing was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 8. Complainant’s Complaint states that the parties entered into a written contract on March 31, 2008. 9. Haver and Associates, L.L.C. served as Complainant’s general contractor. 10. In response to the filed Complaint, the Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection at Complainant’s business on February 8, 2010, to view the Complaint items. 11. As a result of his inspection, Inspector Gerold issued a Corrective Work Order dated February 12, 2010, directing Respondent to timely perform remedial work in five areas of Respondent’s deficient workmanship. The terms of the Corrective Work Order are incorporated herein by reference. 12. At hearing, Inspector Gerold testified that Respondent advised him that items 1, 2, and 4 of the Corrective Work Order had been performed by Respondent. However, items 3 and 5 of the Corrective Work Order remain unaddressed by Respondent. 13. Complainant’s president, Eugene Overline, also testified that Respondent failed to address items 3 and 5 of the Registrar’s written directive. 14. Respondent deviated from local building code requirements by failing to install five air return vents per the city-approved building plans. As a result of that deviation by Respondent, Complainant’s office space of approximately 2,500 square feet does not cool below 83 degrees. 15. There is no credible evidence of any approved change order(s) deleting the five air return vents. Respondent presented a business record of the general contractor that identifies changes on the project, but the documentation does not reflect a change for the five air return vents. 16. Respondent’s deviation from the city-approved plans as described above, its failure to fully comply with the Registrar’s Corrective Work Order, and its failure to appear at the hearing are determined to be strong matters in aggravation in this case. 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), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar. Respondent’s performance of three of the five Corrective Work Order items does not support a conclusion that Respondent abandoned the subject project. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 169649 shall be revoked on the effective date of the Order entered in Case No. 2010-25065507. If Respondent properly accomplishes remedial work to items 3 and 5 of the Corrective Work Order per approved plans and contracted scope of work on or before the effective date of the Order entered in Case No. 2010- 25065507, and the Registrar approves proof of such timely compliance by Respondent, then the above-provided license revocation shall not take place, but instead that Respondent’s License No. 169649 shall be placed on suspension for a period of five days followed immediately by a period of disciplinary probation for 180 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2010-25065507. In addition to the above-provided disciplinary penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Case No. 2010-25065507 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. 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 20, 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