ALJDEC decisions subject to certification as final

2011A-4694-ROC · Registrar of Contractors · 2012-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2012, at 1:00 p.m. APPEARANCES: Complainants appeared through Mrs. Heidi Knight. Respondent failed to appear. A French/English speaking interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. Mrs. Heidi Knight was added as a named Complainant at the onset of the scheduled hearing. Jason Knight appeared telephonically at the scheduled hearing. 2. Respondent Zen Air Services LLC is the holder of License No. C39R.256833- R issued by the Registrar of Contractors. 3. Respondent Zen Air Corp dba T and M Air Solutions is the holder of License No. C39R.273950-R issued by the Registrar of Contractors. 4. License No. C39R.256833-R of Zen Air Services LLC was canceled on July 9, 2011, upon the issuance of License No. C39R.273950-R of Zen Air Corp dba T and M Air Solutions. 5. There was no dispute that Respondent Zen Air Corp dba T and M Air Solutions agreed to be responsible for all warranty or corrective work required for construction work performed under License No. C39R.256833-R of Zen Air Services LLC as a condition of licensure. 6. There was no dispute that both Respondents operated as the same business entity, identified as “Zen Air,” in their business dealings with Complainants. 7. This is a residential matter in which on April 11, 2011, Complainants entered into a construction agreement with “Zen Air” for the replacement of their existing functioning air conditioning units with a new five ton SEER air conditioning unit and a new three ton 15 SEER air conditioning unit for the total sum of $10, 000.00. 8. Respondents installed the two new air conditioning systems, and Complainants fully paid Respondents in full for their installation. 9. When Complainants tried to operate the new air conditioning systems, they found that the new air conditioning units were incapable of cooling their residence. 10. Complainants were very dissatisfied with Respondents’ workmanship and contacted the Respondents and repeatedly requested that Respondents return to their residence and properly correct the operation of the new air conditioning units. 11. When Respondents failed to comply with Complainants’ repeated requests, Complainants filed formal Complaints against Respondents with the Registrar of Contractors. 12. Pursuant to the filing of the formal complaints, an assigned Agency Inspector conducted an on-site inspection and on September 2, 2011, issued written Corrective Work Orders directing Respondents to obtain a mechanical permit and all approved inspections from the local building authorities. 13. Undisputed credible testimony and evidence established that Respondents failed to comply with the terms of the Corrective Work Order issued in this matter. 14. There was no dispute that Respondents failed to obtain required permits from the local building authorities and that no inspections were requested or performed by the local building authorities. 15. There was no dispute that the new air conditioning units were not installed in accordance with the manufacturer’s recommendations. 16. There was no dispute that the new air conditioning systems in Complainants’ residence were not installed in accordance with applicable workmanship and industry standards. 17. Undisputed credible testimony and evidence established that the Respondents abandoned the construction project at issue. 18. There was no dispute that the Respondents acted in the capacity of a contractor in a name other than as set forth upon Respondents’ licenses. 19. There was no dispute that Respondents abandoned Complainants’ construction project. 20. There was no dispute that Respondents departed from or disregarded plans and specifications and applicable building codes in their construction work at Complainants’ residence. 21. Undisputed credible testimony and evidence established that Respondent Zen Air Corp dba T and M Air Solutions failed to properly display its license number as required by A.R.S. § 32-1124(B). 22. Undisputed credible testimony and evidence established that Respondent Zen Air Corp dba T and M Air Solutions failed to disclose facts which if known at the time of the issuance of its license would have been grounds to deny the issuance or renewal of its license. 23. Administrative notice is taken of Respondent Zen Air Services LLC’s prior License record as reflected on the Registrar of Contractors’ public website on May 29, 2012. Such prior License record reflects that License No. C39R.256833-R of Zen Air Services LLC was revoked multiple times on February 2, 2012, revoked multiple times on March 2, 2012, revoked multiple times on March 6, 2012, revoked multiple times on March 19, 2012, and revoked multiple times on April 30, 2012. 24. Administrative notice is taken of Respondent Zen Air Corp dba T and M Air Solutions’ prior License record as reflected on the Registrar of Contractors’ public website on May 29, 2012. Such prior License record reflects that License No. C39R.273950-R of Zen Air Corp dba T and M Air Solutions was suspended for lack of qualifying party on October 16, 2011, and suspended for lack of bond on November 17, 2011. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Undisputed credible testimony and evidence supported findings which establish that Respondent Zen Air Services LLC violated the charged provisions of A.R.S. § 32-1154(A)(1) (abandonment), A.R.S. § 32- 1154(A)(2) (departure from or disregard of plans, specifications and building codes), A.R.S. § 32-1154(A)(15) (acting in the capacity of a contractor in a name other than as set forth upon the license), 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. R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. Undisputed credible testimony and evidence supported findings which establish that Respondent Zen Air Corp dba T and M Air Solutions violated the charged provisions of A.R.S. § 32-1154(A)(1) (abandonment), A.R.S. § 32-1154(2) (departure from or disregard of plans, specifications and building codes), A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B) (display of license), A.R.S. § 32-1154(A)(20) (subsequent discovery of facts which if known would have been grounds to deny the issuance or renewal of a license), A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action), and A.R.S. § 32-1154(A)(3) (failure to perform work in a professional and workmanlike manner). RECOMMENDed orders docket no. 2011A-4694-ROc In view of the foregoing, it is recommended that License No. C39R.256833-R of Zen Air Services LLC be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent Zen Air Services LLC pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by said 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 Respondent Zen Air Services LLC’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with said Respondent, as defined in A.R.S. §32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. DOCKET NO. 2011A-6047-ROC In view of the foregoing, it is recommended that License No. C39R.273950-R of Zen Air Corp dba T and M Air Solutions be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent Zen Air Corp dba T and M Air Solutions pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by said 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 Respondent Zen Air Corp dba T and M Air Solutions’ contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with said 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 this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, June 4, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826