ALJDEC decisions subject to certification as final

2015A-2831-ROC · Registrar of Contractors · 2016-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28, 2016 APPEARANCES: Victoria Sarkiewicz, Complainant; Jon Feldman, Respondent’s representative; Bonnie Katz, Matthew Sakiewicz and Rich See, witnesses; Frank Gochocki, Registrar of Contractors Investigator ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ FINDINGS OF FACT 1. Respondent was hired to install an air conditioning unit on the home that Complainant had recently purchased. When the unit did not work, Respondent made several trips to the home to fix it, but Respondent’s attempts were unsuccessful. 2. When Complainant filed a complaint against Respondent with the Registrar of Contractors, the Registrar of Contractors Investigator did a job site inspection on August 31, 2015, and issued a Directive from the Registrar on September 28, 2015. The Directive stated, in relevant part, as follows:

Jobsite found A/C compressor at roof running but not getting cold, found jackstand not treated material, and no permit or inspection for unit install. At jobsite respondent agreed to install new unit with metal jackstand, respondent to install unit as agreed and obtain permit and pass all inspections from local building authority.

3. The Registrar of Contractors Investigator testified that Respondent agreed at the job site inspection to install a new unit. However, he did not conduct a pre-hearing inspection because it was not disputed that Complainant did not allow Respondent access to the home. The Investigator also said that when he inspected the unit, he found that the serial number had been filed off. 4. In her complaint, Complainant stated that the home had a new air conditioner. She testified at the hearing that the air conditioner broke before she and her family moved in. They called Respondent, who came out that day and the next but the air conditioner stopped working again and flooded part of the home with water. Respondent said he would do some duct work to improve the air flow as well. After another attempted repair, Respondent said he’d get Complainant another unit. He replaced the unit but it broke again. Respondent made one more attempt to repair the unit without success. Complainant said “Baker’s Air,” another air conditioning company, traced the serial number on the unit back to the factory and learned that Respondent was paid to destroy the unit as faulty. She said her family made a cash settlement with the seller and did not file a complaint to access the Recovery Fund. Rather, she said, she believes there should be some consequences for Respondent. 5. Complainant’s husband testified that he thought Respondent’s representative had come to the home 11 or 12 times. He said the shingles on the roof were damaged from all the activity. He said Respondent’s representative said there was a leak at a joint that he could repair with Super Glue. He said that Super Glue will not hold a pressurized system, which he knew from being a certified “ICART” technician. He said the flue was disconnected with no screws in it and no holes where any screws had been, so it did not look like anyone had attempted to attach it to the duct. He said two other air conditioning companies looked at the flue and said the same thing, and they also told him that the unit was too big for the house. He also testified that Todd Baker of Baker’s Air said he traced the fan motor serial number on the replaced unit and learned that Respondent had been paid to destroy that unit.[1] (It was the external serial number that had been filed off, not the fan motor.) Complainant’s husband said he asked Respondent’s representative for a license number or business card and Respondent’s representative wouldn’t give one to him even though he asked several times. He also said the unit wasn’t attached to the roof and was starting to slide down due to vibration and spilled oil was eating through the shingles. He said that two roofers told him that the shingles had been destroyed by Freon oil and from too much walking on the roof which took the asphalt off the shingles. He said the unit wasn’t hooked up properly, that the condensation line was not hooked up and it was laying on the floor. He said the wrong wire was used to hook up the unit, which was documented by two air conditioning companies and an electrician. Further, the unit was not new, it was two years old. The two companies told him the system was unsafe and he was concerned that his family had suffered through the summer heat due to the Respondent’s actions. He said he and Complainant followed through with the complaint to protect other people from Respondent. Under cross examination, he said Super Glue is not a certified repair even though there are 9 different kinds. He also said Respondent’s truck had no Registrar of Contractors license number on it.

6. Complainant’s father testified that he stayed at Complainant’s home as Complainant was traveling from Ohio to move to Arizona. He testified about numerous attempts to work with Respondent’s representative. He, too, testified that he asked for Respondent’s license number and was refused. He also said there was no license number on the truck. He said Respondent’s representative said the replacement unit was a new unit. 7. Respondent’s representative testified that he did not contract with Complainant he contracted with the former owner who did not want him to get a permit. He said he never promised Complainant a new unit. He said it was a “scratch and dent” type unit. He said he had put the Super Glue over some sealant. He said the jackstand was made out of oil soaked wood and he didn’t think to paint it. He said the stem was bent and he repaired it. He said he thought the unit had been tampered with. He said there is no documentation that the unit he used was to be destroyed. He said he took off the serial numbers because there was no factory warranty. 8. Bonnie Katz testified for Respondent that the Respondent’s white truck has magnets and business cards, both with Respondent’s Registrar of Contractors license number on them. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for violation of any rule adopted by the registrar. The Arizona Administrative Code at A.A.C. R4-9-108 is one such rule that requires contractors to meet minimum workmanship standards in the projects they undertake. 4. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. At the time of the writing of this recommendation, Respondent’s license was current with two open complaints. 5. In this case, Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3) when it failed to obtain a permit and an inspection when it installed the replacement unit. Respondent also violated A.R.S. § 32-1154(A)(3) by using a jackstand with untreated material. RECOMMENDED DECISION Based on the foregoing considerations, the undersigned Administrative Law Judge recommends that Respondent’s license (License No. 292284) be suspended for a period of 10 days.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be five (5) days from the date of certification. Done this day, March 30, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Baker’s Air’s inspection report is contained in the case file under Intake Complaint Submission.

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