ALJDEC decisions subject to certification as final

2010A-643736-ROC · Registrar of Contractors · 2010-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2010 APPEARANCES: Chuck Bain appeared personally. Latitude 35 11, L.L.C. was represented by its authorized representative, Darren Cook. 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. Latitude 35 11, L.L.C. (“Respondent”) is the holder of License No. 217429, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 4, 2009, Chuck Bain (“Complainant”) filed a written Complaint with the Registrar alleging workmanship deficiencies in the installation of a furnace and ductwork performed by Respondent at Complainant’s residence at 1821 N. Calico Way, Flagstaff, Arizona. The four Complaint items are incorporated herein by reference. The Registrar initially designated Complainant’s Complaint as Case No. F10- 0064, but later re-designated it as Case No. 2010-643736. 3. The Registrar issued a Citation and Complaint charging Respondent with violations of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32-1124(B), and (23). 4. The Registrar forwarded Case No. 2010-643736 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Schweiger, performed a jobsite inspection at Complainant’s residence to view the Complaint items. That inspection resulted in Inspector Schweiger issuing a Corrective Work Order dated November 17, 2009, which addressed each of the four Complaint items. 6. Inspector Schweiger opined that Complaint items numbers 1 and 2 related to a monetary dispute between the parties which were “beyond the ability of the inspector to resolve.” 7. As to Complaint item number 3, Inspector Schweiger determined that “the system as installed does not appear to meet code and does not function as intended. The Registrar’s written directive required Respondent to timely “correct all deficiencies and comply with all requirements of the local Building Authority to achieve there [sic] approval.” 8. As to Complaint item number 4, Inspector Schweiger could not determine if the high return issue was a violation. However, Inspector Schweiger noted that the issue of a height change in the return must comply with the local building authority’s requirements. 9. Respondent submitted a written Estimate dated October 2, 2008, to Complainant. Respondent’s Estimate did not list its contracting license number, as required by statute. 10. Respondent’s Estimate detailed the scope of work to be performed by Respondent to furnish and install a complete heating system in Complainant’s residence. 11. Respondent’s Estimate excluded “PERMITS, ELECTRICAL, GAS PIPING AND SALES TAX.” 12. Respondent presented Complainant with an Invoice dated March 10, 2009, the date that Complainant paid his final payment of the contract price to Respondent. 13. Respondent’s March 10, 2009 Invoice contained the following note: PLEASE NOTE. Customer discovered a leaking pressure relief valve on existing water heater that was discharging water under home. Cause of valve failure and amount of time valve was leaking is unknown. However, contractor removed joist insulation, applied several gallons of killz protectant to joist bays, sills and stem wall. Contactor then installed R 30 insulation to same area under home. Contractor provided labor and materials for above mentioned work at no cost to customer.

14. Respondent installed new ductwork directly next to Complainant’s then 15-year old hot water heater and its relief valve. 15. Complainant contends that Respondent’s installation of the ductwork caused the relief valve to open unbeknownst to Complainant resulting in discharge from the hot water heater which vented underneath Complainant’s residence allegedly causing new water damage. 16. Respondent presented credible evidence that the relief valve did not comply with local building code requirements because it vented underneath Complainant’s residence rather than venting beyond the house structure. 17. Complainant failed to present credible evidence establishing that Respondent’s workmanship caused his hot water heater’s relief valve to open and vent to underneath his residence. 18. The Corrective Work Order directed that Respondent perform specified remedial work no later than 15 days from the date of the written directive. It is determined that Complainant failed to respond to Respondent’s telephone calls to schedule the required repair work. 19. Respondent is willing to repair the newly installed vent flue to workmanship standards and local building code requirements, as required by the Corrective Work Order. 20. Complainant hired another contractor to remove his 15-year old hot water heater and install a new tank-less hot water heater. Respondent is determined not to be responsible for the replacement of Complainant’s old hot water heater. 21. Any allegation contained in the Complaint not specifically addressed above is determined to either meet workmanship standards or to lack sufficient evidence of record to support a finding of a statutory and/or regulatory violation. 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. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. 4. Respondent is determined not to have violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Complainant’s failure to return Respondent’s telephone calls prevented Respondent from timely complying with the Corrective Work Order. RECOMMENDED ORDER Respondent’s License No. 217429 shall be suspended on the effective date of the Order entered in Case No. 2010-643736 until the Registrar receives written proof, and accepts such proof, that Respondent has complied with the Corrective Work Order by repairing Complainant’s vent flue to local building code requirements and Respondent has fully complied with the requirements of A.R.S. § 32-1124(B). If Respondent fully complies with the written directive to repair Complainant’s vent flue to local code requirements and with the provisions of A.R.S. § 32-1124(B) on or before the effective date of the Order entered in Case No. 2010-643736, and the Registrar accepts proof of such compliance, then the above-provided license suspension shall not take place. In addition to the foregoing license suspension, if any, Respondent’s License No. 217429 shall be placed on probation for a period of 60 days commencing on the effective date of the Order entered in Case No. 2010- 643736 or the date on which the Registrar approves Respondent’s compliance with the terms of this Order, whichever is later. 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, August 10, 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