ALJDEC decisions subject to certification as final

2011A-6958-ROC · Registrar of Contractors · 2013-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: May 21, 2013, at 1:00 p.m. APPEARANCES: Complainant Rachel Kline appeared on her own behalf; Respondent Arrieco LLC appeared through Raymond Dean Johnson, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 39.266907-D to Arrieco LLC (“Respondent”). Rachel Kline (“Complainant”) filed a Complaint against Respondent with the Registrar regarding its replacement of an air conditioner at Complainant’s house at 7668 East Olive Anne Lane, Yuma, Arizona. The Complaint was assigned to the Registrar’s inspector, Daryl McCloskey, for investigation. Inspector McCloskey performed an onsite inspection and on January 12, 2012, issued a Corrective Work Order that required Respondent to perform certain corrective action with fifteen calendar days, in relevant part as follows: THE CONTRACTOR IS TO CORRECT BY [APPROPRIATE] MEANS THE FOLLOWING ITEM(S): 1) The air leaks and or gaps between the air-handle[r] and duct work in the hall closet. 2) The putty on the walls door frame and the missing paint on the wood [in] front of the air-handler at the bottom. 3) The putty stain on the carpet in front of the air-handler door in the hall and the stains [on the] carpet from the front door to the air handler room door in the hall. 4) The two cracked tile[s] at the front entryway. 5) Check the air flow throughout the house.

THE FOLLOWING ITEMS REQUIRE NO ACTION BY THE CONTRACTOR AT THIS TIME [:] 1) The A/C unit did not have any coolant – The complainant drops this item at the jobsite inspection. 2) To return the a/c unit and heating unit which was taken for a fee – The complainant need[s] to check with the insurance company to see if they require[d] the removal of the unit. 3) The items that were not covered by the insurance company – The complainant needs to contact the insurance company.

At Complainant’s request, Inspector McCloskey performed a second jobsite inspection. On April 20, 2012, Inspector McCloskey issued a second Corrective Work Order that required Respondent to take the following corrective action within 15 days: THE [RESPONDENT] (CONTRACTOR) IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEM(S)

1) The lighter colored grout at the front door entry.

After Complainant requested a hearing, the Registrar issued a Citation and Complaint charging Respondent with possible violations of A.R.S. § 32- 1154(A)( 3), namely A.A.C. R4-9-108,[1] and A.R.S. § 32-1154(A)(23).[2] After Respondent failed to file a timely written answer to the Citation and Complaint, the Registrar issued a Default Decision and Order finding that pursuant to A.R.S. § 32-1155(B), Respondent’s failure to answer was deemed an admission of the charges contained in the Citation and Complaint. On February 8, 2013, the Registrar issued an Order Setting Compliance Hearing that provided in relevant part as follows: On October 30, 2012, the Registrar issued a Default Decision and Order providing that Respondent’s K-39.266907-D License would be suspended on the effective date of the Order and remain suspended until Respondent submitted written proof to the Registrar that Respondent had rectified the corrective work involved and detailed in the Complaint and the Corrective Work Order. If Respondent submitted written proof of compliance to the Registrar, and the Registrar accepted such proof, on or before the effective date of the Order, then Respondent’s K- 39.266907-D License would not be suspended and this matter would be closed. The Default Decision and Order had an effective date of December 9, 2012.

On or about December 10, 2012, Respondent submitted its written Notice of Compliance in this matter with the Registrar. On or about December 13, 2012, Complainant submitted written correspondence in this matter with the Registrar disputing Respondent’s Notice of Compliance and providing that Complainant “personally cannot tell any difference in airflow to the master bedroom which is where the issue was.”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Compliance Hearing be scheduled in the expedited course of docketing in the Yuma area. At the Compliance Hearing, the parties may present evidence and testimony as to whether or not respondent has complied with the terms of the Registrar’s October 30, 2012 Default Decision and Order.

If it is determined that Respondent failed to comply with the terms of the Registrar’s October 30, 2012 Default Decision and Order, Respondent’s K-39.266907-D License shall be subject to the immediate imposition of discipline. If it is determined that Respondent fully complied with the terms of the October 30, 2012 Default Decision and order, and all work performed meets minimum workmanship standards, no discipline shall be imposed upon Respondent’s K-39.266907-D License, and this matter will be closed.

IT IS FURTHER ORDERED that prior to the date and time set for the Compliance Hearing in this matter that the assigned Registrar Inspector shall perform a pre-hearing Compliance Inspection and be prepared to testify as to his findings and observations at the Compliance Hearing.

The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing on the issue of whether Respondent had complied with the Registrar’s Default Decision and Order. On May 21, 2013, a compliance hearing was held via videoconference. Inspector McCloskey testified. Complainant testified and presented the testimony of Ryan Unruh, who lived in her house when Respondent performed the work at issue. Respondent’s qualifying party and member, Raymond Johnson, testified on its behalf and presented the testimony of Mark Dutton, Respondent’s project manager. Hearing Evidence In approximately November 2011, Complainant’s outside unit on her HVAC system started leaking fluid. Complainant has an American Home Shield home warranty policy that provided coverage for the repair. American Home Shield supplied units to replace the outside unit and the air handler/condenser on the interior of Complainant’s house. American Home Shield hired Respondent to install the equipment. Respondent picked up the new equipment from American Home Shield and installed the new outside unit and interior air handler/condenser. Respondent did not provide or select the new equipment that it installed. Inspector McCloskey testified that the usual practice in the HVAC industry is that if the outside unit is replaced, a new condenser/air handler is installed inside so that the equipment matches. Inspector McCloskey testified that he performed a compliance inspection on May 20, 2013, at 9:00 a.m. Inspector McCloskey testified that the air leaks in the air handler had been sealed and that the air temperatures were 65° at the duct and 77-78° at the air return. Inspector McCloskey testified that the temperature in Complainant’s house complied with the Registrar’s standards. Inspector McCloskey testified that there was limited air flow in the master bedroom. Inspector McCloskey testified that he inspected the vents and found that one vent into the living room was completely closed, but that the vents into the master bathroom and master bedroom were completely open. Complainant and Mr. Unruh testified that the old air handler/condenser that Respondent removed had done a better job of cooling the master bedroom and master bathroom than the new air handler condenser that Respondent installed. Complainant and Mr. Unruh testified that after Respondent replaced the equipment, vents must be closed in the living room for the HVAC system to adequately cool the master bedroom and master bathroom. Mr. Dutton testified that if vents are totally closed, the air flow from the HVAC system will be compromised and the HVAC system may stall. Mr. Dutton testified that Respondent performed an air balance test on November 8, 2012. Mr. Dutton testified that as a result of the air balance test, air flow to the master bedroom and master bathroom was considerably improved. Inspector McCloskey testified that based on the condition of the vents that he saw on May 20, 2013, someone had changed the vents after Respondent performed the air balance test. Complainant testified that Mr. Johnson and Mr. Dutton were not involved in the installation of the new HVAC system at her house. Complainant testified that she asked Respondent’s employees who installed the HVAC system to leave the old inside air handler/condenser onsite, but they refused. Complainant testified that she attempted to get paperwork for the new inside air handler/condenser from American Home Shield, but it told her that she had to get the paperwork from Respondent. Complainant testified that Respondent’s employees who installed the system told her that the paperwork for the new air handler/condenser was in the unit, but that the paperwork was not in the unit. Complainant testified that she had the paperwork for the old air handler/ condenser unit that was replaced. Complainant testified that if she had the paperwork for the new air handler/condenser, she could compare it to the paperwork for the old air handler/condenser, determine whether the old system had greater air flow capacity, and determine a cause of the inferior performance of the new equipment. Inspector McCloskey testified that the main problem identified in Complainant’s Complaint was the leaking air handler. Inspector McCloskey testified that based on his compliance inspection, he believed that Respondent had fully complied with the Registrar’s Default Decision and Order. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] Respondent bears the burden of proof to establish by a preponderance of the evidence that it complied with the Registrar’s Default Decision and Order or that Complainant failed to provide reasonable access for it to do so.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Respondent established that it fully complied with the Registrar’s Default Decision and Order.[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order, Complainant Rachel Kline’s Complaint in Case No. 2011- 6958 against Respondent Arrieco LLC’s License No. K-39.266907-D shall be closed. 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 five days from the date of that certification. Done this day, May 28, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [2] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [3] See A.R.S. §§ 32-1151 to 32-1169. [4] See A.A.C. R2-19-119(B)(2); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] It appears that Complainant’s dispute is with American Home Shield over the inside air handler/ condenser that it selected and hired Respondent to install. Complainant may be able to obtain the specifications for the new air handler/condenser from the manufacturer to help resolve her dispute with American Home Shield.

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