ALJDEC decisions subject to certification as final

2011A-5330-ROC · Registrar of Contractors · 2012-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 8, 2012

APPEARANCES: Complainant appeared through its owners Rony and Margarita Ghanooni; Respondent was represented by attorney Lisa Tibbedeaux, Bellah & Associates, PLLC, and sole proprietor Randy Hoover.

WITNESSES: Jeff Wills, ROC Inspector Rony Ghanooni Randy Hoover

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The Citation and Complaint issued by the Registrar of Contractors in this matter also alleges that Respondent performed work while its license was suspended or on inactive status and that Respondent operated outside the scope of its license. Respondent asserts that he complied with the Corrective Work Order but admits operating outside the scope of the license while the license was suspended for non-renewal. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony from the witnesses above at the hearing, including Complainant’s Exhibits 1, 2, and 3. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violations and recommending payment of restitution and imposition of a civil penalty. FINDINGS OF FACT 1. Respondent is the holder of license C39R.133676-R issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning systems (excluding solar) for residential properties. The sole proprietor and Qualifying Party on the license is Randy Hoover. 2. According to the ROC website, Respondent’s license was on suspension for non-renewal from April 1, 2011, to October 12, 2011. Respondent testified that he did not receive a reminder from the ROC and failed to renew the license until he received the CWO in this matter. 3. Complainant is a bed and waterbed showroom and warehouse in Phoenix, owned and operated by Rony Ghanooni and his wife.[1] In August 2011, while Respondent’s license was suspended for lack of renewal, Respondent agreed to work on the air conditioner at Complainant’s place of business, a commercial building for which Respondent’s residential license did not authorize him to work. Respondent added refrigerant to the system. Respondent testified that he did not intend to charge Complainant for the work or coolant. Complainant testified that he fully expected to pay for the service. 4. After Respondent had performed the work, Complainant noticed a lack of cold air. According to Complainant’s testimony, he called Respondent and Respondent stated that he had “broken a line” on the unit. Respondent told Complainant that he was too busy to deal with it and that Complainant should get someone to fix it. 5. Respondent testified that he went to Complainant’s building to look at the unit as a favor and so that Complainant would stop calling him. He stated that he put a small amount of coolant in the unit and, as he was disconnecting his equipment, he moved the discharge line and noticed a crack. He disconnected the unit so that it would not run. Respondent contends that there was a prior repair on that line where it cracked and that it is not his responsibility. 6. Complainant insisted that Respondent fix the unit, and Respondent refused. Complainant hired another contractor to fix it and paid $1,480.54. 7. When Complainant filed his complaint against Respondent with the ROC on September 19, 2011, the complaint form asked him what could be done to resolve his complaint. He requested that the unit be fixed or that Respondent pay him $850.00, an amount he believed it would cost to repair the cracked line based on Respondent’s statements to him about the potential cost of fixing the line. 8. On October 7, 2011, ROC Inspector Jeff Wills issued a Corrective Work Order (“CWO”) after he inspected the jobsite. The CWO ordered Respondent to fix the problem and noted that Respondent must either hire a properly licensed contractor to do so or pay Complainant $850.00. Inspector Wills testified that he used the amount that was stated in the complaint form. 9. The parties agreed at hearing that Respondent has given Complainant a cashier’s check for $850.00. Therefore, Respondent complied with the CWO as written and has made partial restitution to Complainant. 10. Respondent’s defense that there was a prior crack is based on flimsy evidence. The contractor who fixed the line did not see evidence of a prior repair.[2] Furthermore, the evidence is clear that Respondent should not have done the work in the first place, due to its commercial nature and the suspension of the license. Respondent is responsible for any harm caused by its actions. 11. The evidence shows that it cost Complainant $1,480.54 to fix the problem caused by Respondent. Respondent has paid $850.00 of that amount. The remaining amount for restitution is $630.54. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden for all but one citation. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibiting poor workmanship), (A)(23) (requiring compliance with a CWO), (A)(17) ( prohibiting contracting outside the scope of the license), and (A)(18) (prohibiting contracting while a license is suspended or inactive).[6] The evidence shows violations of these provisions except for (A)(23). 3. The evidence does not show that Respondent failed to comply with the CWO. Respondent followed the instructions by paying Complainant $850.00. 4. However, the other violations are clear on the record. Respondent is responsible for knowing the status of the license and the scope of the authority of it. The work for Complainant should never have occurred. This tribunal finds that Respondent has violated subsections (A)(3), (A)(17), and (A)(18). 5. A check of the licensing information for Respondent on the ROC website shows that Respondent has been licensed since 1990 and has never been disciplined. This is an excellent record. Respondent should pay further restitution and a civil penalty. If he does so, the case should be closed. RECOMMENDED ORDER IT IS RECOMMENDED that license C39R.085966-R, held by Randy Hoover dba Randy’s Refrigeration and Air Conditioning, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has paid Complainant $630.54 and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-533o shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, Randy Hoover dba Randy’s Refrigeration and Air Conditioning pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(E) for contracting while the license was suspended or inactive. Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, February 27, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Hereinafter, “Complainant” will refer to both Rony Ghanooni and the sole proprietorship business. [2] Exhibit 1. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [6] There are also other citations that were not addressed by the evidence presented at hearing.

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