ALJDEC decisions subject to certification as final

2010A-308471340-ROC · Registrar of Contractors · 2010-12-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2010 at 1:00 p.m. APPEARANCES: Complainant Leslie Ostrander appeared on her own behalf; Respondent Air Conditioning of Arizona, L.L.C. appeared through Troy Davila, its managing member and qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In March 2009, the Registrar of Contractors (“the Registrar”) issued License No. ROC252603, Class K-39 for dual air conditioning, refrigeration, and heating to Respondent Air Conditioning of Arizona, L.L.C. Troy Davila is Respondent’s managing member and qualifying party. In March 2010, the Registrar received a complaint from Complainant Leslie Ostrander. The complaint alleged that Respondent had contracted to install a used heat pump on Complainant’s condominium at 622 N. LeSueur Circle in Mesa, Arizona, but instead installed the heat pump on Complainant’s neighbor’s condominium at 623 N. LeSueur Circle. Complainant requested that the Registrar order Respondent either to remove the unit from her neighbor’s condominium and install it on hers, to purchase another unit to install on her condominium, or to pay her $3,800.00 to allow her to hire another contractor to install a new unit. In April 2010, Complainant requested that the Registrar issue a citation against Respondent because it had not resolved her complaint. In August 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1) and (13) (namely A.R.S. § 32-1124(B)). Respondent timely answered the Citation and Complaint, denying any statutory violations and affirmatively alleging that its contract was with Complainant’s mother and that Respondent had fully performed the contract according to its terms. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on November 15, 2010. Complainant testified on her own behalf, presented the testimony of her mother, Theresa Loquidis, and submitted seven exhibits. Respondent presented the testimony of Mr. Davila and Keita Takawaki, one of the workers who installed the heat pump, and submitted three exhibits. Additional Evidence Ms. Loquidis contacted Respondent about installing a new, more efficient unit on her house at 1836 N. Stapley #149 in Mesa. The heat pump that Ms. Loquidis wanted to replace was only approximately seven years old. Complainant owned a condominium, where her adult son lived. The unit on Complainant’s condominium was much older than the heat pump at Ms. Loquidis’ house and no longer functioned. Ms. Loquidis asked Respondent to submit two proposals: (1) To replace the heat pump on her house with a more efficient unit; and (2) To take the heat pump that was removed from her house and install it on Complainant’s condominium. Ms. Loquidis gave Respondent’s telephone number to Complainant. On January 14, 2010, Complainant called Respondent and spoke to Mr. Davila. Complainant testified that she provided the address of 622 N. LeSueur Circle to Mr. Davila during that telephone call. Mr. Davila testified that Complainant did not provide her address. Instead, she provided general directions to allow access to Respondent to replace the unit at her condominium. Mr. Davila testified that Ms. Loquidis provided the address of Complainant’s condominium as 623 N. LeSueur Circle. Mr. Davila went to the condominium to make sure that the heat pump from Ms. Loquidis’ house would fit. Mr. Davila testified that because the heat pump was a package unit, the only reason that Respondent would have needed access to the interior of the condominium would have been to check the air flow. Because the heat pump was used, however, Respondent did not provide a warranty for adequate air flow. Ms. Loquidis did not dispute that she provided the address of Complainant’s condominium as 623 N. LeSueur Circle to Respondent. Instead, Ms. Loquidis testified that she had never been to Complainant’s condominium, that she told Mr. Davila that she was uncertain of the address, and that she advised him to consult Complainant. On January 15, 2010, Mr. Davila e-mailed to Ms. Loquidis Respondent’s estimates to replace the heat pump on her house on W. Stapley and to transfer the heat pump to the condominium at 623 N. LeSueur Cir. Ms. Loquidis verbally accepted Respondent’s estimates. On January 15, 2010, Mr. Davila prepared Respondent’s written estimate to transfer the 3 ton heat pump from Ms. Loquidis’ house on N. Stapley to Complainant’s condominium on LeSueur for $895.00, including the transfer and crane charge. The address for Complainant’s condominium on Respondent’s estimate was “623 N. Lesureur [sic] Cir.”[1] The written estimate did not show Respondent’s license number preceded by the acronym “ROC.” Respondent scheduled its crew to replace Ms. Loquidis’ heat pump and to transfer the old heat pump to Complainant’s condominium on January 30, 2010, a Saturday. Mr. Davila testified that he had given the written estimate to Ms. Loquidis on the date that it was prepared, two weeks before Respondent was scheduled to perform the work, to allow her to review the estimate and to check the address of the condominium. On January 27, 2010, Complainant sent an e-mail to Mr. Davila to introduce herself and to ask him if Respondent had some “wiggle room” on the price that it had given to Ms. Loquidis if Complainant agreed to pay cash. Complainant also told Mr. Davila that her son would not be working on Saturday and would be available if Respondent provided “a window” when it planned to install the heat pump. On January 27, 2010, Mr. Davila responded to Complainant’s e-mail. Mr. Davila agreed to lower Respondent’s price to $850.00 if Complainant paid cash, stated that the heat pump should be up and running by 12:00 to 1:00 p.m., and offered to call Complainant’s son before Respondent finished installing the new system on Ms. Loquidis’ house. On January 28, 2010, Complainant responded to Mr. Davila’s e-mail and informed him that she did not know whether her son would be at the condominium on January 30, 2010, because “he has plans, but isn’t sure if they will happen or not.” Complainant stated that she would leave the money with Ms. Loquidis. On January 28, 2010, Mr. Davila responded to Complainant’s e-mail, informing her that “[c]ash would be great” and that if her son was not home, Respondent could “jumper the unit on the roof to perform a start-up and testing.” Complainant did not provide the address of her condominium in either of her e-mails to Mr. Davila. On January 30, 2010, Mr. Davila and his crew, Mr. Takawaki and Lorenzo Lee, arrived at Ms. Loquidis’ house with a crane to replace her heat pump and to transfer it to Complainant’s condominium. Mr. Davila and Mr. Takawaki testified that Ms. Loquidis signed the estimates to replace the heat pump and to transfer it to Complainant’s condominium before Respondent started work. Ms. Loquidis testified that she never saw the estimate until January 30, 2010, when Respondent’s workers arrived to replace the heat pump on her house. Ms. Loquidis testified that she would never sign an estimate until the work was complete. Ms. Loquidis testified that she told Mr. Davila that she did not know the address of Complainant’s condominium. The estimate that Ms. Loquidis signed did not show any notation to the address, “623 N. Lesureur [sic] Cir.” On January 30, 2010, Ms. Loquidis gave Complainant’s check, made payable to “Cash” in the amount of $850.00, to Mr. Davila to pay for the transfer.

After Respondent’s crew ate lunch, they met the crane at the number referenced on the written estimate, “623 N. Lesureur Cir.,” to transfer the unit. Complainant’s son was not home when Respondent’s crew arrived. Respondent’s crew replaced the heat pump on the condominium at 623 N. LeSueur Circle with the unit that they had removed from Ms. Loquidis’ house. When Respondent’s crew finished installing the heat pump on the condominium at 623 N. LeSueur Circle, the owner came home and asked what Respondent’s crew were doing on his roof. The owner was very understanding about the mistake because the old unit was 25 or 30 years old. Mr. Davila informed Complainant that Ms. Loquidis had given Respondent the wrong address for the transfer. Mr. Davila inspected the heat pump that was on Complainant’s condominium and determined that it could not be repaired. Mr. Davila offered to “keep his eyes open” for a used package system that Respondent would supply at no cost to Complainant if she agreed to pay for installation and the crane transfer fee. As of the date of the hearing, Respondent had not located a used unit that was in good working condition and would fit on the condominium. According to the Registrar’s record, Respondent’s license is current and in good standing. This is the only complaint pending against the license. Mr. Davila submitted his business card. The business card shows Respondent’s license number preceded by the acronym “ROC.” CONCLUSIONS OF LAW The matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s contractor’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] The written estimate that became Respondent’s contract when Ms. Loquidis signed it reflected the number, “623,” not “622,” when identifying the location of Complainant’s condominium. Respondent’s contract was with Ms. Loquidis, not Complainant. Respondent fully performed the contract by transferring the heat pump to the address shown on its contract with Ms. Loquidis. Ms. Loquidis’ testimony that she did not receive or sign the written estimate until after the work was done was not credible, because the usual practice in the construction industry is that contractors do not start work until the client has signified that she agrees to the scope and price of the work by signing the estimate or proposal.[6] Ms. Loquidis’ testimony that she told Mr. Davila that she did not know the correct address was not credible in light of her failure to note her uncertainty on the written estimate that she signed to approve the work. Complainant’s testimony that she provided a different address in a telephone conversation on the day before Respondent prepared the estimate was not credible in light of the address shown on Respondent’s estimate and Complainant’s failure to reiterate the correct address in subsequent e-mails. Therefore, Complainant did not establish that Respondent abandoned or failed to perform its contract or cause for the Registrar to discipline Respondent’s license under A.R.S. § 32-1154(A)(1).[7] Complainant established that Respondent did not place its license number preceded by the acronym “ROC” on its estimate. Therefore, Complainant established cause for the Registrar to discipline Respondent’s license under A.R.S. § 32-1154(A)(13) (namely, A.R.S. § 32-1124(B)).[8] RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final Order, the Registrar suspend License No. ROC252603, Class K-39 previously issued to Respondent Air Conditioning of Arizona, L.L.C. until Respondent has placed its license number preceded by the acronym “ROC” on its estimate form and all other documents used in its contracting business. It is further recommended that if on or before the effective date of the Registrar’s final Order, Respondent has provided written proof that is satisfactory to the Registrar that Respondent has modified its estimate form and all other documents used in its contacting business to show its license number preceded by the acronym “ROC,” the Registrar not suspend Respondent’s license but instead close Case No. 2010-[number redacted]. 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, December 1, 2010. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Davila apparently misspelled the street name on Respondent’s estimate. None of the parties called the misspelling to the Administrative Law Judge’s attention or attached any significance to it. [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] See A.R.S. § 32-1158(C) (requiring contractor to furnish copies of documents to property owner “[a]t the time of signing a contract”; see also Ry-Tan Construction, Inc. v. Washington Elementary School District No. 6, 210 Ariz. 419, 421 ¶ 15, 111 P.3d 1019, 1021 (2005) (Public entity that accepts a bid on a public contract is not bound until execution of formal contract). [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1124(B) requires that licensed contractors include their license number, which “shall be preceded by the acronym ‘ROC,’” on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.”

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