PDF copy: ALJDEC decisions subject to certification as final

2015A-19-ROC · Registrar of Contractors · 2016-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Gerrard and Katrina Anderson, No. 2015A-19-ROC COMPLAINANTS,

v. ADMINISTRATIVE LAW JUDGE Sonoran Builders Ltd dba, DECISION Perry Heating and Cooling, License Nos: 147224, 104310, 104323, & 104311 RESPONDENT.

HEARING: February 26, 2016 APPEARANCES: Complainants Brian Gerrard and Katrina Anderson appeared on their own behalf. Respondent Sonoran Builders Ltd doing business as Perry Heating and Cooling were represented by Michael Hornisher.1

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

1. The Arizona Registrar of Contractors (Registrar) issued License No.

147224, 104310, 104323, and 104311 to Sonoran Builders Ltd doing business as Perry

Heating and Cooling (Respondent).

2. On or about January 7, 2013, Brian Gerrard and Katrina Anderson

(Complainants) signed a contract with Respondent for the installation of a new air

conditioning system at their condominium, including a custom stand. 3. Prior to installation, Respondent did not pull a permit for the project. 4. After installation, the air conditioner began leaking and Complainants had numerous problems. Complainants attempted to reach out to the company and owners over the course of two years to resolve the issues. 5. In 2014, when Respondent was unable to determine the cause of the leaking, Respondent installed a new unit. After that installation, employees of

Complainants subpoena the owners of Respondent, who failed to comply with the subpoena.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 Respondent instructed Complainants to turn the unit off when they were not present to avoid ongoing leaks. 6. On January 5, 2015, the Registrar received a Complaint against

Respondent from Complainants alleging poor work with respect to the installation and

operation of the air conditioner system.

7. The Registrar assigned the complaint to Investigator Frank Grochocki.

After a jobsite inspection, Investigator Grochocki issued a written directive to

Respondent that provided 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. Unit on pallet with original electrical and out of level, install unit on proper stand, level, install new disconnect and whip as per contract. 2. Water leaking around unit inside, find source of leak, correct. 3. Electrical wiring at rooftop unit connection/conduit without proper connector, correct, call for inspection from local building authority, pass all required inspections. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

8. Following the issuance of the written directive, Respondent complied with the first item in the directive. To address the leaking, Respondent requested a representative from the manufacturer visit the site to inspect the installation. Rick Willeford testified that during his August 2015 inspection, he determined the drain line under the sink had been installed improperly with a secondary trap that caused the drain line to back up, overflow the drain pan, and leak onto the roof. 9. Upon fixing the drain line, Respondent tested the drain line by pouring three gallons of water into the drain pan and ensuring it did not drain. Respondent provided testimony that the test far exceeded the expected condensation that would occur during the monsoon season. Complainants stated that they had not experienced

any leaks since August 2015, but that they had not had the air conditioner on for an extended period of time since then to test the unit. 10. On August 1, 2015, Respondent pulled a permit for the installation of the

air conditioner and scheduled an inspection. For whatever the reason, the inspector

did not show for the inspection. Respondent made no attempt to reschedule the

inspection.

11. Investigator Grochocki did not perform a compliance inspection because

the parties agreed the installation had not passed the inspection.

12. The Registrar issued a Citation against Respondent, charging a possible

violation of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-

1154(A)(3); and A.R.S. § 32-1154(A)(22).

13. Complainants provided documentation that Pima County requires a permit

for the installation of an air conditioner unit.

14. Respondent provided testimony that they often fail to pull permits for new

air conditioner system installations and/or leave it to the homeowner to pull the permit.

Further, Respondent asserted that because it had arranged for the first inspection that

did not occur, it had no further responsibility with respect to that part of the directive. 15. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 17, 2016. Such prior License record reflects that Respondent’s License 147224 is current. Such prior License record also reflects that there was one open complaint against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41- 1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 3. The evidence established that Pima County requires a permit for the installation of an air conditioner and Respondent did not pull a permit. Therefore, Complainants established Respondent disregarded the specification of the building

codes in violation of A.R.S. § 32-1154(A)(2).2

4. The evidence established that Respondent’s installation of the air

conditioner was flawed and resulted in leaking. However, it appears at this time that

the unit is no longer leaking, but that cannot be confirmed until the unit is operating for

an extended period of time. The correction of the issue does not negate that there was

poor work during the installation. Therefore, Complainants established that

Respondent did not complete the project in a workmanship manner in violation of

A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).3

5. The evidence established that Respondent did not arrange for and pass

the county inspection after pulling the permit. Therefore, Complainants established

that Respondent failed to take appropriate corrective action following a written directive

from the Registrar in violation of A.R.S. § 32-1154(A)(22).4

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos. 147224, 104310, 104323, and 104311 for a period of 10 days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D).

2 A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture 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.” 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.” 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.R.S. § 32-1154(A)(22) 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.” It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No

future license shall be issued to any entity consisting of persons associated with

Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders

payment of any outstanding prior civil penalty.

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, March 17, 2016. /s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors