ALJDEC decisions subject to certification as final

2015A-2683-ROC · Registrar of Contractors · 2016-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2016, at 1:00 p.m. APPEARANCES: Diane B. Delander (“Complainant”) appeared telephonically on her own behalf; Solid Comfort Air Conditioning Inc. (“Respondent”) appeared through Ronald Gordon Campbell, its qualifying party and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On September 5, 1978, the Arizona Registrar of Contractors (“the Registrar”) issued License No. R39R.048394-R for residential air conditioning and refrigeration to Respondent. On December 21, 1987, the Registrar issued License No. C-39.073129-C for commercial air conditioning and refrigeration to Respondent. On or about June 19, 2015, Complainant filed a complaint with the Registrar against Respondent regarding its installation of a new air conditioning unit and related work on her house at 9634 North 1st St., Phoenix, Arizona 85020. Complainant specifically complained on the complaint form that Respondent did not properly install or seal two water heater air vents in the roof and that the flanges for the air conditioning unit on her roof was not properly sealed. According to the complaint form, Complainant did not know the date that Respondent had contracted to perform work at her home, the amount of its contract, or the amount that had been paid to Respondent. Complainant attached a letter to her June 19, 2015 complaint that provided a narrative of her dealings with Respondent and her efforts to get bids from other contractors to repair the roof. In the letter, Complainant also alleged that her roof had leaked due to Respondent’s poor work, referred to photographs that were attached to her complaint that allegedly showed daylight visible through the duct work, which Complainant claimed allowed rainwater to infiltrate her home, and requested that the Registrar require Respondent to pay $5,023.45 for mold testing and mold remediation. The Registrar assigned Complainant’s complaint to Investigator Steve Klein. Investigator Klein performed a jobsite inspection on August 5, 2015. On that same date, Investigator Klein on behalf of the Registrar issued a Directive to Respondent to perform certain corrective work, in relevant part as follows: 1. Complaint Item 1: Did not properly install in roof & seal enough two water heater vents. • Respondent installed two combustion air vents and an exhaust fan vent. One of the combustion air vent flanges was not installed per industry standards, and the Respondent agreed to correct.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On or about August 10, 2015, Complainant sent an email to Investigator Klein, stating in relevant part as follows: Today I received my copy of the “directive from the Registrar.” Thank you for your fast service!

However, the items in our conversation last week are not mentioned in the Directive letter, specifically that the water heater vent leak did cause the ceiling drywall damage, and therefore [Respondent] is responsible also for the removal and replacement of that ceiling drywall (it’s still within the 2 year guarantee of work).[1]

On or about August 11, 2015, Investigator Klein responded to Complainant’s email, stating in relevant part as follows: If there is drywall damage caused from a leak that the Respondent is responsible for [.] He should have to correct it.

Bring it to his attention when they come back to make the shingle correction.[2]

Investigator Klein subsequently performed a second jobsite inspection on September 30, 2015. On that same date, Investigator Klein on behalf of the Registrar issued an Amended Directive that required Respondent to perform certain additional corrective work, in relevant part as follows: 1. Complaint Item 1: Did not properly install in roof & seal enough two water heater vents. • Respondent installed two combustion air vents and an exhaust fan vent. One of the combustion air vent flanges was not installed per industry standards, and the Respondent agreed to correct. • Shingles should be installed per industry standards and manufacturers installation instructions around a/c elbow flange.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant requested a hearing on her complaint. On January 13, 2016, the Registrar issued a Citation against Respondent, charging possible cause to revoke, suspend, or otherwise penalize its licensed under A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108,[3] and A.R.S. § 32-1154(A)(22).[4] On January 21, 2016, Respondent filed a timely written answer to the Registrar’s Citation, stating in relevant part as follows: [Respondent] has contacted the roofing company that did the directive repair for [Complainant’s] home back on 10/20/15. I have enclosed the invoice from the roofing company that states the roof was repaired to industry standards. We have contacted Steve Klein at the [Registrar] and are working on a solution to get this matter handled ASAP.

A hearing was held on April 15, 2016. Complainant on April 8, 2016, submitted four exhibits and on April 15, 2016, testified telephonically on her own behalf. Investigator Klein testified. Respondent’s representative appeared, but did not submit any evidence. Hearing Evidence Investigator Klein testified that Respondent had repaired the leak on Complainant’s roof before the August 5, 2015 jobsite inspection. Investigator Klein testified that Respondent also complied with the August 5, 2015 Directive to properly seal the combustion air vent on the roof. With respect to the shingles over the flanges for the air conditioning unit, Investigator Klein testified that he initially misread Complainant’s complaint and missed her complaint about sealing over the flanges. Inspector Klein testified that at his September 30, 2015 jobsite inspection, he agreed that Respondent should have installed shingles over the air conditioner’s flanges. Investigator Klein testified that based on his observations at the August 5, 2015 and September 30, 2015 inspections, he did not agree that Respondent was responsible for a leak that caused drywall damage and mold at Complainant’s residence. Investigator Klein testified that Respondent had added a patch to comply with the September 30, 2015 Amended Directive. Investigator Klein testified that initially, he felt that the patch should be corrected but that he consulted with investigators for the Registrar who were more experienced with roofing and who all agreed that the patch was acceptable. Nonetheless, Inspector Klein performed a prehearing inspection on April 1, 2016, and saw that Respondent had replaced the patch with shingles. Investigator Klein testified that all of the corrective work on the August 5, 2015 Directive and the September 30, 2015 Amended Directive had been completed in a professional and workmanlike manner. Complainant did not ask Investigator Klein any questions. Complainant argued that Respondent should have done the job right the first time. Complainant testified that she believed that Respondent had caused a leak that resulted in drywall damage and mold at her residence. Complainant submitted bids from other contractors to repair the drywall and perform mold remediation at her residence.[5] Complainant requested that Respondent either be required to repair the drywall and remediate the mold or to make a financial settlement with her. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[6] Complainant bears the burden of proof to establish cause to revoke, suspend, or otherwise discipline Respondent’s licenses by a preponderance of the evidence.[7] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[8] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[9] Respondent needed to have a roofing contractor repair the sealing of the one combustion air vent and the shingles around the air conditioner’s elbow flange. Investigator Klein testified that Respondent had these repairs timely performed in a professional and workmanlike manner. Investigator Klein also testified that he did not believe that any leak caused by Respondent caused drywall damage and mold in Complainant’s residence. Because Investigator Klein has experience in the construction industry and has no personal stake in the outcome of this administrative proceeding, the Administrative Law Judge (“ALJ”) treats his testimony as an expert opinion. Complainant did not submit any controverting expert testimony on the cause of the leak that allegedly damaged the drywall and caused mold at her residence or when the leak occurred. Therefore, the ALJ accepts Investigator Klein’s expert testimony on this issue. Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their work before the Registrar disciplines their licenses. Therefore, Complainant did not establish cause to revoke, suspend, or otherwise discipline Respondent’s licenses under A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108,[10] or A.R.S. § 32- 1154(A)(22). RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order, the complaint in Case No. 2015-2683 shall be dismissed against Respondent Solid Comfort Air Conditioning Inc.’s License Nos. C- 39.073129-C and R39R.048394-R. 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, April 21, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Complainant’s Exhibit C1, submitted April 8, 2016. [2] Id. [3] 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.” [4] 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.” [5] See Complainant’s Exhibits 3 and 4, submitted April 8, 2016. [6] See 32-1101 et seq. [7] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [8] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [9] Black’s Law Dictionary at page 1220 (8th ed. 1999). [10] 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.”

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