ALJDEC decisions subject to certification as final

2010A-308477541-ROC · Registrar of Contractors · 2011-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Clay Wagner. 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-77 (No. 248449) License issued by the Registrar of Contractors. 2. The Respondent’s qualifying party is Douglas Kay Adair. 3. One of the Respondent’s members, Robert Jay Adair, serves as qualifying party for a Class KB-2 (No. 240412) issued to Adair Framing LLC. 4. This is a residential matter where the parties entered into a construction agreement for the Respondent to furnish and install a solar energy package, including a Fafco solar hot water system, a Aeroseal duct sealing application, and a K-VAR energy system, in the Complainant’s residence for the total sum of $10,760.00. 5. There was no dispute that the Respondent installed the agreed upon energy saving package in the Complainant’s residence. 6. After approximately five (5) months of operation the Complainant became very dissatisfied with the energy savings he was receiving from the solar energy package and demanded that the Respondent correct the solar energy package so that it would save the amount of energy that the Complainant asserted the Respondent’s sales representative had allegedly promised the Complainant or refund the Complainant’s money. 7. Credible testimony and evidence established that the Respondent refused to return any money to the Complainant. 8. When the Respondent refused to return the Complainant’s money, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. The credible evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans, specifications or any building codes. 10. Credible testimony and evidence established that pursuant to the filing of the formal Complaint, an assigned Agency Inspector reviewed the matter and on January 6, 2011 issued a letter to the Respondent which provides, in pertinent part, as follows: We have received information that you are operating beyond the scope of your Arizona contractor's license.

Our records indicate you have a current class K-77 license. However, we have information indicating you are performing or offering to perform work which would be covered under the scope of a class C-11 and C-39 license regarding installation of K-VAR and duct sealing.

Arizona Revised Statutes, Section §32-1154, sets forth numerous grounds for suspension or revocation of a license. A.R.S. §32- 1154 A.17 reads:

"Knowingly contracting beyond the scope of the license or licenses of the licensee."

Under these circumstances, the agency can seek disciplinary action against your license. You should review our most recent statutes and rules book to familiarize yourself with the scope of your license(s).

11. There was no dispute that the Respondent does not possess a C-11 (Electrical) License or a C-39 (Air conditioning & refrigeration, including solar) License. 12. The Respondent asserted that the installation of the K-VAR energy system and the duct sealing were performed under the Class KB-2 (Dual residence and small commercial) License of Adair Framing LLC. 13. The February 2009 “Rules of the Arizona Registrar of Contractors” provides that the scope of the Class KB-2 License of Adair Framing LLC includes the construction of all or any part of a residential structure or appurtenance, except for electrical, plumbing, air conditioning systems, boilers, swimming pools, spas and roofing (except shingles and shakes) which must be subcontracted to an appropriately licensed contractor. 14. Credible testimony and evidence established that the Respondent knew, or should have known, that the Respondent was performing contracting work beyond the scope of the Respondent’s Class K-77 (Plumbing including solar) License. 15. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondent was advised that in the event of a finding of a violation against the Respondent, the Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against the Respondent and said notice revealed that there are three (3) complaints on the Registrar of Contractors’ current record regarding the Respondent. Therefore, the Respondent’s prior record is properly deemed to be neither good nor bad and thus, is viewed neither in mitigation or aggravation. 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans and specifications or any building codes) as charged in the Citation. 5. The credible evidence of record established a violation by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license or licenses of the licensee). RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed electrical contractor to inspect and approve the electrical work that the Respondent performed at the Complainant’s residence in the installation of the K-VAR energy system and a properly licensed air conditioning contractor to inspect and approve the duct sealing work that the Respondent performed at the Complainant’s residence. It is further recommended that if the Respondent causes a properly licensed electrical contactor and a properly licensed air conditioning contractor to properly accomplish the above described corrective actions, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, May 9, 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