ALJDEC decisions subject to certification as final

2012A-4370-ROC · Registrar of Contractors · 2013-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 9, 2013

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: Scott Deering, ROC Inspector Tom Davenport

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to correct poor work by Respondent for two air conditioning units that Respondent installed at Complainant’s home. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (“ROC”) into the record. ROC Inspector Scott Deering testified. Complainant presented evidence and testified. 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 revocation of the license. FINDINGS OF FACT 1. Respondent was the holder of License No. C39R.103060-R, a residential air conditioning and refrigeration contracting license issued by the ROC. The license has been revoked multiple times, the most recent being on September 26, 2013. 2. In August 2011, Complainant hired Respondent to install two HVAC units in the attic in his home. Complainant did so. In August 2012 one of the units quit working. Complainant contacted Respondent who found that the circuit breaker had tripped. Later that day, the breaker tripped again and Complainant had an electrician replace it. However, this did not fix the problem and the air conditioning unit stopped working again. For the next three days, Complainant attempted to contact Respondent but to no avail. Finally, Complainant had another contractor look at the unit. 3. The other contractor found that the unit was not level and that this caused a moisture problem that burned out the “moisture switch.” The contractor replaced the switch and leveled the unit. That work fixed the problem. The other contractor also noted that there were leaks in the ductwork and that a return duct was undersized.[1] 4. Complainant filed an ROC complaint against Respondent. On October 17, 2013, ROC Inspector Scott Deering performed a jobsite inspection and made the following conclusions:

Complaint #1- Units not properly leveled resulting in accumulation of water in the bottom of units causing the sensor to eventually burn out. At the time of the jobsite inspection the Complainant had the two air handlers level corrected by others. Also the sensor was removed by others.

No action required by the Contractor.

Complaint # 2- Inadequate and/or incomplete sealing of units resulting in loss of efficiency and air leakage into attic area.

Contractor to correct by the appropriate means.

Complaint # 3- Air return duct undersized for unit on west side of house causing increased work load for unit and potentially voiding factory warrantee.

Contractor to correct by the appropriate means.

Complaint # 4- Not listed earlier, but I suspect the circuit breaker for one of the units should be 30 amp rather than 20 amp.

No action required by the Contractor.

A Corrective Work Order (“CWO”) with the orders listed above was issued on November 2, 2012. 5. Inspector Deering testified at the hearing on October 9, 2013. He performed a pre-hearing inspection on October 7, 2013, and found that no work had been done; the units were in the same condition as the year before. 6. Inspector Deering explained his original findings in more detail. He stated that he found some leakage of air in the distribution boxes of both units. He also researched the manufacturer’s specifications on the size of the air return and found that one of them at Complainant’s house is undersized (the west return is 16 inches and must be at least 18 inches). Further, he noted that Respondent was not present at either the first inspection or the pre-hearing inspection. 7. Respondent did not appear and contest the evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has met that burden. 2. The evidence shows poor workmanship and failure to comply with a CWO. These actions are violations of A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108, and (A)(23), as alleged in the Citation and Complaint. 3. A review of current ROC records shows that Respondent’s license was revoked in August and September of this year. Pursuant to A.R.S. § 32- 1154(C), revocation of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to revoke the license in this matter. 4. Respondent failed to appear at either inspection and at the hearing. Respondent’s license should be revoked in this matter. Complainant may then make a claim to the Fund for his actual damages caused by the violations. RECOMMENDED ORDER IT IS RECOMMENDED that License No. C39R.103060-R, held by AL Tech Energy Management, Inc., be revoked.

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, October 18, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Attached to the complaint form is the Service Order/Invoice that documents the findings. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826