ALJDEC decisions subject to certification as final

2012A-2076-ROC · Registrar of Contractors · 2012-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2012 APPEARANCES: Matthew Shores appeared personally. Beebe and Sons Air Conditioning and Heating, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Beebe and Sons Air Conditioning and Heating, L.L.C. (“Respondent”) is the holder of License No. K-39.241511-D issued by the Registrar of Contractors (“Registrar”). 2. On August 10, 2011, Respondent entered into a contract with Matthew Shores (“Complainant”) for the following scope of work to be performed by Respondent at Complainant’s Phoenix residence: Replace existing A/C system. Install new 5 ton gas/electric package unit. 13 ½ seer. 10 new supply registers. 2 new return registers. New gas pipeing [sic] to new unit. Digital T- stat. Bath exhaust fan. Condensate. Crane charge. Elbow and stand. Flex duct thoughout [sic]. Air balance system after start-up.

3. The parties’ contract provided that Complainant would receive the following warranties: (i) 10-year warranty on the compressor; (ii) 10- year warranty on parts; and (iii) 5-year warranty on labor. 4. The parties’ contract price was $6,885.00, including tax and labor. Complainant paid a down payment in the amount of $4,500.00 and subsequently paid the balance of the contract price prior to the completion of work by Respondent. 5. On April 20, 2012, Complainant filed a written Complaint with the Registrar alleging statutory violations by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2012- 2076. 6. The Registrar issued a Citation and Complaint in Case No. 2012-2076 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(1) and A.R.S. § 32-1154(A)(2). 7. In Respondent’s answer to the Citation and Complaint, Respondent’s qualifying party and member, William Greg Beebe Sr., stated that Complainant’s Complaint was justified. Mr. Beebe explained that he and Respondent had financial problems. 8. The Registrar forwarded Case No. 2012-2076 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. The Registrar issued a Notice of Hearing that advised the parties of the time, date, and location of the formal hearing. The Notice of Hearing was sent to the parties at their addresses of record with the Registrar. 10. On August 15, 2012, the hearing was scheduled to be conducted. Prior to the commencement time for the hearing, Mr. Beebe telephoned the Office of Administrative Hearings and advised that he was out of town with vehicle problems on the way to the hearing. The hearing was continued at Respondent’s request. 11. On August 22, 2012, an Order Granting Continuance was sent to the parties via U.S. mail and electronic mail. The Order Granting Continuance advised the parties that a continued hearing was scheduled for September 26, 2012, at 1:00 p.m. 12. The commencement of the scheduled hearing on September 26, 2012, was delayed 15 minutes to allow for the late arrival of Respondent’s authorized representative. After the delay, the Administrative Law Judge conducted the hearing in Respondent’s absence. 13. Respondent completed the installation of new ductwork per local building code requirements in October 2011. 14. The project was then ready for the purchase and installation of the gas/electric pack unit. Respondent requested that Complainant pay the remaining balance of the contract price before the purchase and installation of the gas/electric pack unit. Complainant paid the remaining balance of the contract price although work remained to be performed. The next day after Complainant made the final payment, Mr. Beebe asked Complainant if the remaining work could be delayed due to a death in Mr. Beebe’s family. However, Respondent never returned to Complainant’s residence to complete the remaining work, which involved the following: (i) the purchase and installation of the gas/electric pack unit; (ii) the installation of a digital thermostat; and (iii) the installation of the remaining registers. 15. The evidence of record established that Respondent abandoned the subject project without any legal justification for the abandonment. Respondent had been paid in full for its scope of work before Respondent completed the work. Complainant’s second and final payment of the contract price to Respondent appears to have been used by Respondent for something other than Complainant’s project. 16. There is no credible evidence that Respondent’s workmanship failed to comply with local building code requirements or deviated from plans or specifications prior to its abandonment of the project. On the contrary, Complainant testified that the ductwork installed by Respondent met local building code requirements. 17. Administrative notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website on October 16, 2012. Such prior license record reflects that Respondent’s License No. K- 39.241511-D was suspended for non-renewal on February 7, 2012, and suspended for lack of bond on May 23, 2012. Such prior license record also reflects one open complaint and no closed cases against Respondent’s contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of the authority to impose discipline upon that license for proven statutory violations in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154(A)(1), as charged in the Citation and Complaint issued by the Registrar. Respondent clearly abandoned the subject project without legal justification for having done so. 4. The evidence of record does not establish that Respondent violated the provisions of A.R.S. § 32-1154(A)(2), as charged in the Citation and Complaint issued by the Registrar. There is no evidence that Respondent deviated from plans or specifications or failed to comply with local building code requirements prior to its abandonment of the project. On the contrary, Complainant testified that Respondent’s ductwork installation met local building code requirements. RECOMMENDED ORDER Respondent’s License No. K-39.241511-D shall be revoked on the effective date of the Order entered in Case No. 2012-2076.

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 forty (40) days from the date of certification.

Done this day, October 16, 2012.

/s/ Brian Brendan Tully 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