ALJDEC decisions subject to certification as final

2011A-3411-ROC · Registrar of Contractors · 2011-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 22, 2011 APPEARANCES: George Cebry appeared personally. Honeyman A C, L.L.C. was represented by its authorized representative, Leland Honeyman. 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. Honeyman A C, L.L.C. (“Respondent”) is the holder of License No. 235072, a Class C-39R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On June 13, 2011, George Cebry (“Complainant”) filed a written Complaint with the Registrar alleging deficient workmanship by Respondent in the installation of a new HVAC system at Complainant’s residence located at 49091 E. Mountain View Road, Paradise Valley, Arizona. The Registrar designated the Complaint as Case No. 2011- 3411. 3. In response to the Complaint, the Registrar’s assigned inspector, Jeff Fleetham, performed a jobsite inspection at Complainant’s residence to view the alleged deficient workmanship. As a result of that inspection, Inspector Fleetham issued a Corrective Work Order directing Respondent to timely perform remedial work. Respondent was required to address the new unit’s not cooling the residence to workmanship standards and to fix the new air handler pursuant to a jobsite agreement. Respondent was not required to add a new filter, as requested by Complainant. 4. The Registrar issued a Citation and Complaint in Case No. 2011-3411 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2011-3411 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Respondent submitted a written proposal dated March 21, 2011, to Complainant with four options for a new heat pump system. Those options were as follows: – 5 ton 13 SEER Goodman heat pump split system Raise ductwork up from drop ceiling, new R6 flex $6,230.00

– 5 ton 13 SEER Trane heat pump split system/ includes raise ductwork & new R6 flex - $7,500.00

– 3 ton 13 SEER Goodman heat pump split system/ 1 – 2 ton 13 SEER heat pump split system to include raised ductwork and new R6 flex - $9,500.00

– 3 ton 13 SEER Trane heat pump split system/ 1 – 2 ton 13 SEER heat pump split system to include raised duct work and new R6 flex - $11,500.00

7. Complainant selected the 1 – 5 ton 13 SEER Goodman heat pump system option for $6,230.00, including a digital thermostat. 8. The Registrar’s workmanship standards provide that an air conditioning unit “should cool a structure 30°…lower than outside air temperature when measured in center of room at 5’ height…[m]inimum indoor temperature should be 78°.” 9. Complainant complained that his unit would not cool to 78°; however, he had the thermostat set at 82°. 10. When Inspector Fleetham performed his jobsite inspection, the new unit would not cool to 78° after running for four hours. 11. Complainant’s residence is 2,700 square feet. Respondent contends that a combination of a 100-foot run of ductwork from the unit and the lack of adequate insulation in the roof where the new ductwork is exposed to temperatures reaching 150° contributes to the new unit’s not meeting workmanship standards. 12. Respondent is determined to be responsible, at its sole cost and expense, for any additional work necessary to cause the new unit to meet workmanship standards for cooling. 13. Inspector Fleetham testified that Respondent fixed the leak in the new air handler, as required by the Corrective Work Order. 14. As a result of Respondent’s failure to cause the new unit to meet workmanship standards for cooling, it is determined that Respondent failed to comply with the Corrective Work Order as to that item. 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 violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s Corrective Work Order requiring Respondent to correct by appropriate means the new unit’s failure to cool to workmanship standards. 4. 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. Respondent failed to install the new unit in a proper and workmanlike manner as evidenced by its failure to cool within workmanship standards. RECOMMENDED ORDER Respondent’s License No. 235072 shall be suspended on the effective date of the Order entered in Case No. 2011-3411 until the Respondent provides written proof to the Registrar, and the Registrar approves such proof, that Respondent has taken the appropriate corrective action, at its sole cost and expense, necessary for the new unit to achieve workmanship standards for cooling. If Respondent provides written proof to the Registrar that Respondent has taken the appropriate corrective action, at its sole cost and expense, necessary for the new unit to achieve workmanship standards for cooling on or before the effective date of the Order entered in Case No. 2011-3411, and the Registrar approves such proof, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 235072 shall be placed on probation for a period of 60 days commencing on the effective date of the Order entered in Case No. 2011-3411 or the date on which the Registrar approves proof of Respondent’s compliance with the entered Order, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $250.00 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. 2011-3411 shall result in the 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, December 12, 2011.

/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