ALJDEC decisions subject to certification as final

2011A-5105-ROC · Registrar of Contractors · 2012-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9, 2012, at 10:00 a.m. APPEARANCES: Gayle Gretta (hereinafter “Complainant”) appeared on her own behalf. Zen Air Corp dba T and M Air Solutions (hereinafter “Zen”) appeared through its authorized representative, Marilena Ariel Popa. 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 Order are made: FINDINGS OF FACT 1. Zen is the holder of License No. C39R.273950-R issued by the Registrar of Contractors. 2. This is a residential matter where Zen installed a new air conditioning system on Complainant’s residence. 3. Complainant was dissatisfied with Zen’s workmanship and failure to correct its work despite her repeated requests that Zen do so. 4. On or about August 31, 2011, Complainant filed a formal Complaint against Zen with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection and on September 22, 2011, issued a written Corrective Work Order directing Zen to perform designated corrective work on Complainant’s new air conditioning system. 5. The September 22, 2011 Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means: 1. A/C unit is not insulated and was installed without any insulation: The return air and the supply air ducts are not insulated, needs to be insulated per contract. 2. Need to check why A/C not blowing to store room never mentioned to me at time of install that store room wasn’t receiving air (there is an existing A/C vent and duct work running to it): There is not sufficient air blowing from the [register], needs to be properly corrected. 3. A/C not sealed around roof jack: Roof jack not properly sealed at base, needs to be properly corrected. 4. Broke attic access cover: Cover is broken, needs to be replaced.

6. Complainant filed an Addendum to her Complaint on or about November 17, 2011, and Inspector Nieves conducted another onsite inspection. On December 1, 2011, Inspector Nieves issued a second written Corrective Work Order directing Zen to properly correct the following items:

Contractor to correct the following by appropriate means: . . . .

2. Properly run thermostat wire on roof: Wire needs to be properly secured and sealed around roof penetration. 3. Properly run existing wire on exterior wall of house (E side): Conduit needs to be properly secured and sealed.

No action is required on the following: 1. Failed to install strip heater in unit: Not specified in contract. 4. Re connect condensate drain pipe, paint put on blocks: Line is [properly] connected and meets the standards.

7. On January 10, 2012, Inspector Nieves issued a letter informing Zen that the Registrar of Contractors had received information that Zen may be in violation of the provisions of A.R.S. § 32-1124(B) (display of license number with acronym “ROC”). Zen’s communications with Complainant and the Registrar of Contractors in this matter failed to include Zen’s license number with the acronym “ROC” as required by applicable statute. 8. Complainant testified that Zen repeatedly sent out an unlicensed handyman to perform corrective action on her air conditioning system. Complainant stated that Zen promised to send out a more qualified person to do the corrective work but when the individual was identified, he turned out to be the same unlicensed person. On May 25, 2011, Zen stated that it was sending out another individual identified as “George” to inspect the air conditioning unit. 9. Complainant testified that she allowed the individual identified as “George” access to her residence on June 5, 2012, and requested that he provide her with an estimate for the cost of correcting her air conditioning system. Complainant stated that “George” failed to provide her with the requested estimate.[1] 10. Complainant testified that Zen did a “very sloppy” job. Complainant stated that Zen did not insulate for the new air conditioning unit, failed to restore air conditioning to the store room, failed to properly seal penetrations on her roof, failed to properly seal and secure the thermostat wire on the inside of her residence, and failed to properly secure and seal the existing wire on the exterior of her residence.[2] 11. Complainant testified that the installation of heat strips was supposed to be part of the construction agreement and that Zen failed to install the agreed-upon heat strips. Complainant testified that Zen has been deceitful in its dealings with her and the Registrar of Contractors. Complainant stated that Zen has had over one year to resolve the problems with her air conditioning system and has failed to do so.[3] 12. Marilena Ariel Popa (hereinafter “Ms. Popa”) testified that she contacted a general contractor, Bill Morris, to examine Complainant’s air conditioning system and to try to resolve the complaint but that Mr. Morris was unable to resolve the problem. Ms. Popa stated that Complainant would not allow Mr. Morris access to Complainant’s residence a second time.[4] 13. Ms. Popa testified that Complainant’s air conditioning unit is insulated. Ms. Popa stated that the insulation is inside the plenum. Ms. Popa stated that it was a special order from the manufacturer specifically for Complainant.[5] 14. Zen’s actions over a prolonged period of time are not indicative of a good-faith desire to resolve this matter by complying with the terms of the two Corrective Work Orders. On the contrary, Zen has repeatedly failed to properly accomplish compliance with the terms of the two Corrective Work Orders despite having repeated opportunities to do so. Thus, any condition placed into the Registrar’s Order for the purpose of allowing Zen an additional opportunity to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Zen cause a properly licensed HVAC contractor of Complainant’s choice, and at Zen’s sole expense, to fully comply with the terms of the two Corrective Work Orders. 15. Administrative notice is taken of Zen’s prior license record as reflected on the Registrar of Contractors’ public website on July 23, 2012. Such prior license record reflects that License No. C39R.273950-R of Zen was suspended on October 16, 2011, for lack of qualifying party and suspended on November 17, 2011, for lack of bond. 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. Zen failed to return to Complainant’s residence and perform corrective action on Complainant’s air conditioning system despite repeated opportunities to do so. This Tribunal concludes that Zen violated the charged provisions of A.R.S. § 32-1154(A)(1) (abandonment). 4. Zen installed Complainant’s air conditioning system without insulation and failed to connect the new air conditioning system to Complainant’s store room. This Tribunal concludes that Zen violated the charged provisions of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building codes) 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). 5. Zen failed to include its license number with the acronym “ROC” in its written communications with the Complainant and the Registrar of Contractors. This Tribunal concludes that Zen violated the charged provisions of A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1124(B).[6] 6. Zen failed to comply with the terms of the two Corrective Work Orders issued in this matter. This tribunal concludes that Zen violated the charged provisions of A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action after receiving a written directive from the Registrar of Contractors). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, License No. C39R.273950-R of Zen shall be revoked unless the Registrar of Contractors receives and accepts written proof that (1) Zen has caused a properly licensed HVAC contractor of Complainant’s choice and at Zen’s sole expense to fully comply with the terms of the two Corrective Work Orders and (2) Zen has brought all of its business forms, including contracts, to within full compliance with the applicable provisions of A.R.S. § 32-1124(B). It is further recommended that the above provided License revocation shall not take place and that this matter be shall be closed if on or before the effective date of this Order, Zen provides acceptable written proof to the Registrar that (1) Zen has caused a properly licensed HVAC contractor of Complainant’s choice and at Zen’s sole expense to fully comply with the terms of the two Corrective Work Orders, and (2) Zen has modified all of its business forms to comply with the applicable provisions of A.R.S. § 32-1124(B). It is further recommended, in addition to the above-provided penalties, if any, that Zen pay the sum of $600.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Zen 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 Zen’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Zen, 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 the Order will be 40 days from the date of the certification. Done this day, July 24, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 7/9/12 Hearing Record (hereinafter “H.R.”) at 38:00-41:58. [2] H.R. at 42:10-43:16. [3] H.R. at 42:10-47:10. [4] H.R. at 1:19:06-1:22:44. [5] H.R. at 1:28:00-1:33:37. [6] A.R.S. § 32-1124(B) provides as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

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