ALJDEC decisions subject to certification as final

2014A-2385-ROC · Registrar of Contractors · 2015-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 23, 2015, at 10:00 a.m. APPEARANCES: Primera Iglesia Bautista de Antoquia (hereinafter “Complainant”) appeared through its authorized representative, Maria Borrego (hereinafter “Ms. Borrego”). Summer Heating and Air, LLC (hereinafter “Respondent”) appeared through its member Vincent Sandoval (hereinafter “Mr. Sandoval”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(1), 32-1154(A)(2), 32-1154(A)(3), and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of License No. R39R-243191-R issued by the Registrar. Respondent’s license is current. 2. This is a commercial matter in which on or about April 12, 2014, Respondent contracted to install four new air-conditioning units and associated duct-work on Complainant’s church building located at 12610 W. County Line Road, Avondale, Arizona 85323.

3. The two air conditioning units that Respondent installed at the church building did not work and Respondent failed to deliver and install the remaining two air conditioning units. When the Complainant complained to the Respondent. Respondent agreed to correct its construction work and complete the installation of the remaining air-conditioning units. 4. When the Respondent failed to resolve the problems with the air- conditioning units that it had installed and failed to deliver and install the remaining air-conditioning units, the Complainant filed a Complaint against Respondent with the Registrar. 5. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s church building. 6. On August 20, 2014, a written Directive was issued by the Registrar. 7. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Permit not pulled to do HV/AC: Check with local jurisdiction on permitting HV/AC. Correct by appropriate means. 2. Unit one at entry not working properly: Correct by appropriate means. 3. Unit two not working: Correct by appropriate means. 4. Two units have not been delivered or installed: Correct by appropriate means. 5. Duct work is unfinished: Correct by appropriate means. 6. Electrical is incomplete: Correct by appropriate means.

8. The written Directive also directed the Respondent as follows: You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy those violations only by paying a properly licensed contractor hired by Complainant to correct you deficient workmanship or by reaching a financial settlement with Complainant.

9. When the Respondent failed to comply with the terms of the written Directive the Complainant requested that the Registrar issue a Citation against Respondent’s license. 10. On June 16, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained four charges: 1. A violation of A.R.S. § 32-1154(A)(1).[1] 2. A violation of A.R.S. § 32-1154(A)(2).[2] 3. A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[3] 4. A violation of A.R.S. § 32-1154(A)(22).[4]

Testimony 11. The assigned Registrar Investigator, Stephen Lawton (hereinafter “Investigator Lawton”), testified that a written Directive was issued in this matter by the Registrar after his first onsite inspection. Investigator Lawton stated that the construction project required construction permits from the local building authority. Investigator Lawton said that no permits were obtained. 12. Investigator Lawton testified that he observed that the agreed upon construction work at the church building had not been completed by the Respondent. Investigator Lawton stated that he considered the Respondent to have abandoned the construction project. Investigator Lawton said that he observed illegal wiring at the commercial jobsite. Investigator Lawton said that the Respondent has a residential license and is not licensed to perform commercial work. Investigator Lawton acknowledged that he informed the Respondent to stop work on the construction project because it was a commercial project and the Respondent was not licensed to perform commercial work. Investigator Lawton opined that the Respondent failed to comply with the written Directive issued in this matter. 13. Investigator Lawton’s testimony is found to be credible. 14. Pauline Soza (hereinafter “Ms. Soza”) reviewed the history of Complainant’s relationship with the Respondent. Ms. Soza testified that Complainant had already been able to obtain a civil judgment against the Respondent but had been unable to collect on its civil judgment. Ms. Soza said that she handled all communications with Respondent. Ms. Soza said that she was not aware that Respondent failed to obtain a required construction a construction permit for the construction project. Ms. Soza said that it was always very difficult to communicate with the Respondent. Ms. Soza said that Respondent failed to comply with any of its agreements with the Complainant. 15. Ms. Soza testified that when the Respondent failed to comply with the Registrar’s Directive, the Complainant hired a licensed electrical contractor to correct the electrical wiring at the church. Ms. Soza stated that Mr. Sandoval requested the Complainant to make checks out to him personally rather than the Respondent. 16. Ms. Soza’s testimony is found to be credible. 17. Ms. Borrego testified that the Complainant tried to work with the Respondent in any way that it could. Ms. Borrego stated that there was no “want to” from the Respondent. Ms. Borrego acknowledged that Respondent dropped off two air conditioning units. Ms. Borrego said that one of the units did not work properly and the other unit did not work at all. Ms. Borrego said that electrical company that Complainant contracted with observed that the wiring and duck work installed by Respondent was incorrect and incomplete. Ms. Borrego said that Respondent failed to perform the corrective work set forth in the Registrar’s written Directive within the 15 day period set forth in the Directive. Ms. Borrego said that Respondent was aware that Complainant’s church building was a commercial building and that Respondent did not have a commercial license. 18. Ms. Borrego’s testimony is found to be credible. 19. Mr. Sandoval testified at the Complainant is a small church and he was trying to work with the Complainant as a team. Mr. Sandoval said that he purchased two new air-conditioning units at the church. Mr. Sandoval said that he could not work at the project because of the improper wiring and the amount of number of desks present in the building. Mr. Sandoval acknowledged that he was “kind of wrong.” Mr. Sandoval acknowledged that Respondent was at fault for taking a commercial job when it did not have a commercial license. 20. Mr. Sandoval acknowledged that the Complainant paid him directly. Mr. Sandoval said that the Complainant received value for the money that it had paid him because he had delivered the two air- conditioning units to the Complainant. Mr. Sandoval said that the complaint should be against him personally rather than the Respondent. Mr. Sandoval acknowledged that Respondent purchased the two air-conditioning units that were delivered to Complainant. 21. Manuel Espinoza testified that he is the pastor for the Complainant. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[5] 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 these matters is by a preponderance of the evidence.[6] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Investigator Lawton credibly testified that he observed that the agreed upon construction work at the church building had not been completed by the Respondent and that the Respondent had abandoned the construction project. Investigator Lawton said that he observed illegal wiring at the commercial jobsite. Investigator Lawton said that the Respondent has a residential license and is not licensed to perform commercial work. Investigator Lawton said that Respondent had failed to obtain a required construction permit from the local building authority. Ms. Borrego credibly testified that Respondent failed to perform the corrective work set forth in the Registrar’s written Directive within the day period set forth in the Directive. Ms. Borrego credibly testified that Respondent was aware that Complainant’s church building was a commercial building and that Respondent did not have a commercial license.

Complainant established by a preponderance of the evidence that Respondent abandoned the construction project at issue in violation of the charged provisions of A.R.S. § 32-1154(A)(1). Complainant established by a preponderance of the evidence that Respondent failed to obtain a required construction permit from the local building authority in violation of the charged provisions of A.R.S. § 32-1154(A)(2).

Complainant established by a preponderance of the evidence that Respondent’s construction work on Complainant’s building failed to meet minimum workmanship standards. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108. Complainant established by a preponderance of the evidence that the Respondent failed to comply with the terms of a written Directive issued by the Registrar in violation of the charged provisions of A.R.S. § 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. R39R- 243191-R of Respondent shall be revoked. 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 five days from the date of the certification. Done this day, December 9, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(1) provides, in relevant part, as follows: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [2] A.R.S. § 32-1154(A)(2) provides, in relevant part, as follows: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [3] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[4] A.R.S. § 32-1154(A)(22) provides, in relevant part, as follows: Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

[5] See A.R.S. § 32-1154(A). [6] See A.A.C. R2-19-119. [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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