ALJDEC decisions subject to certification as final

2010A-308472738-ROC · Registrar of Contractors · 2011-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 9, 2011 and March 24, 2011 APPEARANCES: Cherokee Muncy appeared personally. Arizona’s Comfort King, Inc. was represented by its authorized representative, Harry Arthur White, Jr. 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. Arizona’s Comfort King, Inc. (“Respondent”) is the holder of License No. 212303, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 28, 2009, Cherokee Muncy (“Complainant”) accepted Respondent’s written proposal for the following scope of work to be performed at Complainant’s residence located in Litchfield Park, Arizona: “Removal of a split gas furnace and replace with a new Rudd 14.5 seer 4-ton gas pack.” 3. Respondent actually installed a Rudd 14 seer 2.5-ton gas pack unit at Complainant’s residence. 4. Complainant filed a written Complaint with the Registrar alleging workmanship deficiencies in Respondent’s workmanship on her project. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted]. 5. In response to the filed Complaint, the Registrar’s assigned inspector at the time, Craig Williams, performed a jobsite inspection to view the Complaint items. As a result of that inspection, Inspector Williams issued a Corrective Work Order that directed Respondent to address the Complaint items either by reactivating its license and performing the necessary remedial work or by reaching a financial resolution with Complainant. 6. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (3), namely A.A.C. R4-9-108, and (23). 7. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. Respondent installed a 14 seer 2.5-ton unit rather than the unit specified in the accepted proposal.[1] Respondent failed to present any credible written evidence that the size of the specified unit was “nominal,” contending that it could be smaller than specified. In contrast, the only documentary evidence presented at the hearing was the accepted written proposal, which does not make any reference to a “nominal” 14.5 seer 4-ton unit. 9. The Registrar’s newly assigned inspector, Rick Oelke, testified that Respondent failed to comply with Inspector Williams’ Corrective Work Order. 10. Respondent failed to obtain a required building permit from the City of Litchfield Park for installing the new unit. Moreover, Respondent violated local code requirements by mounting Complainant’s new unit on her roof. In addition, Inspector Oelke testified that Respondent further violated code because the lack of proper sealant resulted in significant duct leakage into Complainant’s attic. 11. Respondent failed to meet the Registrar’s Workmanship Standard requiring Respondent to perform its work “in a professional and workmanlike manner” and per local building code. 12. A review of the Registrar’s official electronic licensing records reveals that Respondent’s contracting license has been inactive since January 14, 2010. 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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not reactivate its contracting license, pursuant to A.R.S. §32-1125.01, in order to comply with the Corrective Work Order. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar, by abandoning Complainant’s project. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent failed to perform its work in a professional and workmanlike manner and failed to meet local building code requirements. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar, by not complying with the Corrective Work Order. RECOMMENDED ORDER Respondent’s License No. 212303 shall be revoked on the effective date of the Order entered in Case No. 2010-[number redacted]. In addition to the above-provided license revocation, 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-[number redacted] shall result in the additional 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, April 12, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent’s former salesperson, John Gardner, testified that he erred when he wrote “14.5 seer,” because Rudd does not have such a sized unit.

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