ALJDEC decisions subject to certification as final

2011A-5675-ROC · Registrar of Contractors · 2012-03-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 21, 2012, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent failed to appear. 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. This is a residential matter where the Respondent advertised that it would examine and clean all of the HVAC vents in a residence for $49.00. 2. The Complainant responded to the Respondent’s advertisement and arranged an appointment with the Respondent. 3. Undisputed credible testimony and evidence established that the Respondent arrived at the Complainant’s residence at the agreed upon time on March 26, 2010, and falsely pretended to examine the vents in the Complainant’s residence. 4. The Respondent then informed the Complainant that there was mold in the Complainant’s vent system and that the mold presented a health and safety danger to the inhabitants of the residence. 5. The Respondent informed the Complainant that the vents could not be cleaned until the mold was properly removed from the entire vent system. 6. The parties then entered into a written contract for the Respondent to apply a mold treatment to all of the vents in the Complainant’s residence for the sum of $431.00. 7. There was no dispute that the Respondent specifically agreed that there would be a two year warranty for its work and that the Respondent would return to the Complainant’s residence every six months and examine the Complainant’s vents to verify that no new mold was present. 8. When the Respondent failed to schedule an appointment for the first agreed upon six month follow-up inspection, the Complainant performed his own visual examination of the vents in his residence. The Respondent discovered that many of the vents had never been cleaned, that several of the vents were damaged, that the paint on the walls around the vents had been damaged, and that several of the vents had been reinstalled backwards. 9. The Respondent then attempted to contact the Respondent and demand that the Respondent return to his residence and fully comply with the terms of the parties’ construction agreement. 10. When the Respondent failed to respond to the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and verified the items set forth in the Complainant’s complaint and on November 3, 2011, issued a written Corrective Work Order directing the Respondent to cause proper corrective action on the Complainant’s residence. 12. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 13. Undisputed credible testimony and evidence established that the work performed by the Respondent on the Complainant’s residence fails to comply with applicable industry and workmanship standards. 14. Undisputed credible testimony and evidence established that the Complainant received nothing of value for the money that he paid the Respondent. 15. Administrative notice is taken of the Respondent’s prior license record as reflected on the Registrar of Contractors’ public website on March 21, 2012, such prior License record reflects that License No. C39R.256833-R of Zen Air Services LLC was revoked by the Registrar of Contractors on February 2, 2012, March 2, 2012, March 6, 2012, and March 19, 2012. 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 this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Undisputed credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of 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). RECOMMENDed order 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 the Respondent 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 the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the 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 the Order will be 40 days from the date of the certification. Done this day, April 3, 2012.

/s/ M. Douglas 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