ALJDEC decisions subject to certification as final

2010A-997358-ROC · Registrar of Contractors · 2010-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2010 APPEARANCES: Mario’s Italian Restaurant was represented by its authorized representative, James Rinaldi. Fayette A C and Sheetmetal, Inc. was represented by its authorized representative, Mark Fayette. 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. Fayette A C and Sheetmetal, Inc. (“Respondent”) is the holder of License No. 136206, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On December 30, 2009, James Rinaldi, on behalf of Mario’s Italian Restaurant (“Complainant”), filed a written Complaint with the Registrar alleging deficient workmanship by Respondent on a project at the restaurant located at 2961 Thistle Drive, Lake Havasu City, Arizona. The Registrar initially designated the Complaint as Case No. L10-0099, but later re-designated it as Case No. 2010-997358. 3. The Registrar issued a Citation and Complaint in Case No. 2010-997358 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). 4. The Registrar forwarded Case No. 2010-997358 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. Complainant hired Parker Roofing, Inc. (“Parker”) to perform roofing work on the restaurant’s roof. 6. Parker subcontracted with Respondent to perform the following scope of work necessary for Parker to perform its scope of work: Remove and reset Air Conditioning and Evap. Regular Hourly

We disconnect existing electrical and PVC fittings, removed, roofer to seal roof, set back existing equipment and reconnect existing electrical and PVC fittings.

7. Respondent sent Parker an Invoice dated October 1, 2009, in the amount of $450.00 for the work performed by Respondent. Respondent’s contracting license numbers were properly listed on the invoice. Parker paid that invoice. 8. Shortly after Respondent completed its work, Complainant’s evaporative cooling unit caught fire after the unit was turned on. Mr. Rinaldi put the fire out. 9. Mr. Rinaldi then contacted Respondent to perform a service call to investigate the fire and perform any necessary repairs. 10. Upon inspection, Respondent’s technician determined that the unit’s motor had burned up and needed replacement. That unit was approximately 1 ½ years old at the time. 11. Respondent presented Mr. Rinaldi with a Service Order Invoice for the proposed scope of repair work. Respondent’s Service Order lists Respondent’s contracting license numbers, but did not include the required “ROC” prefix. 12. Upon completion of Respondent’s repair work, Mr. Rinaldi signed Respondent’s Service Order Invoice below the following language: I have authority to order the work outlined above which has been satisfactorily completed. I agree that Seller retains title to equipment/materials furnished until final payment is made. If payment is not made as agreed, Seller can remove said equipment/materials at Seller’s expense and/or impose a 2% liquidation fee on the entire amount contained in the Seller/Buyer transaction. Any damage resulting from said removal shall not be the responsibility of Seller.

13. Respondent sent Complainant an Invoice dated October 7, 2009 in the amount of $543.38, including taxes, for the following scope of repair work performed: Removed and replaced ¾ HP 230V cooler motor, pulley cord, and rewired receptacle box. Serviced by Jeremy. Regular Hourly

See original invoice for reductions [in charges].

14. Respondent’s contracting license numbers are properly listed on the Invoice dated October 7, 2009. 15. Complainant has refused to pay the repair invoice to Respondent. Complainant contends that Respondent incorrectly rewired the unit resulting in the fire. Complainant also believes that the bill is too high. 16. At hearing, Mr. Rinaldi testified for Complainant. He admitted that he is not an electrical or HVAC expert. 17. Complainant failed to present any credible evidence to support its contention that Respondent improperly rewired the unit resulting in the unit catching on fire. 18. Respondent’s technician, Jeremy Elwell, testified for both parties. Mr. Elwell is a certified technician with 10 years experience. 19. Mr. Elwell opined that Complainant’s original unit internally grounded out in the motor. Mr. Elwell testified that Respondent did not charge Complainant for wiring the new motor or for any overtime. 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. Complainant failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1124(B), as charged in the Citation and Complaint issued by the Registrar. Finding of Fact No. 11 above supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 136206 shall be suspended on the effective date of the Order entered in Case No. 2010-997358 until Respondent provides written proof to the Registrar that Respondent has become fully compliant with the provisions of A.R.S. § 32-1124(B), subject to the Registrar’s approval of such proof of compliance. If Respondent provides written proof to the Registrar that Respondent has become fully compliant with the provisions of A.R.S. § 32-1124(B) on or before the effective date of the Order entered in Case No. 2010-997358, and the Registrar approves such proof of Respondent’s compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010-997358 shall be closed. 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, June 14, 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