ALJDEC decisions subject to certification as final

2010A-308474502-ROC · Registrar of Contractors · 2011-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Jose Martin Valdez. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-39 (No. 211910) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new air conditioning unit in the Complainant’s home for the sum of $2,600.00. 3. The Complainant was dissatisfied with the Respondent’s workmanship and with the fact that the new air conditioning system did not work. 4. When the Respondent failed to comply with the Complainant’s repeated requests to make the new air conditioning system fully operational, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 23, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s new air conditioning system. 6. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 7. There was no credible evidence of any unreasonable denial of access by the Complainant in this matter. 8. Credible testimony and evidence established that the Respondent’s workmanship on the installation of the new air conditioning system was far below applicable workmanship and industry standards. 9. Credible testimony and evidence established that the Respondent departed from or disregarded applicable building codes in its construction work at the Complainant’s residence. 10. Undisputed credible testimony and evidence established that the Respondent has failed to comply with a directive of the local building authority to bring the installation of the new air conditioning system to within applicable code requirements. 11. Credible testimony and evidence established that the Respondent apparently lacks the required expertise to properly correct the installation of the Complainant’s new air conditioning system. 12. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this Respondent should not be allowed to wreak any further havoc on the lives of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed HVAC contractor of the Complainant’s choice to fully comply with the terms of the Corrective Work Order issued in this matter. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (departure from or disregard of building codes), A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order the Respondent’s License be revoked unless the Registrar of Contractors receives proof that the Respondent has caused a properly licensed HVAC contractor of the Complainant’s choice to fully comply with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent utilizing a properly licensed HVAC contractor of the Complainant’s choice causes the proper accomplishment the above described corrective action, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead the Respondent’s License be placed on disciplinary probation for a period of thirty (30) days. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, November 15, 2011.

/s/ M. Douglas 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