ALJDEC decisions subject to certification as final

2015A-2960-ROC-rhg2 · Registrar of Contractors · 2016-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|Tammy Morse Ory, | | No. 2015A-2960-ROC-RHG2 | |COMPLAINANT, | |No. 2015A-5113-ROC-RHG | |v. | |CONSOLIDATED ADMINISTRATIVE LAW | | | |JUDGE DECISION | |Universal Desert State Air LLC, | | | |License No: 249198 and 258476 | | | |RESPONDENT. | | | |------------------------------------| | | |----------------------- | | | |Fosdick Enterprises Inc. dba, K F | | | |Builders | | | |COMPLAINANT, | | | |v. | | | | | | | |Universal Desert State Air LLC, | | | |License No: 249198 and 258476 | | | |RESPONDENT | | | | | | |

HEARING: August 22, 2016 APPEARANCES: Complainant Tammy Morse Ory appeared on her on behalf. Karl Fosdick appeared on behalf of Complainant Fosdick Enterprises Inc. dba, K F Builders. Michael Conklin, qualifying party and member, appeared on behalf of Universal Desert State Air, LLC (Respondent). ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainant Tammy Morse Ory is the owner /occupant of a residence located at 6736 West Camino De Oro, Peoria, Arizona 85383. 2. Complainant Fosdick Enterprises Inc. dba, K F Builders is the general contractor involved in the construction of the Ory residence that hired Respondent as a subcontractor to install the home’s and guest house’s heating and air conditioning units. 3. Respondent holds Arizona Contractor’s License Nos. 249198 and 258476.[1] 4. On July 10, 2015, Complainant Tammy Morse Ory filed a complaint with the Registrar of Contractors (Registrar) addressing issues regarding the guest house drain line, failure to seal duct work and the fact that half of the house did not cool properly due to an undersized air conditioning unit being installed. 5. Pennington testified that he performed a jobsite inspection to address these issues and substantiated the complaint items. He explained that the Orys had city-approved plans specifying a 5 ton unit should be used and that the proposal submitted by Respondent to Fosdick Enterprises Inc. dba, K F Builders (proposal) called for a 3.5 ton air conditioning unit, but the unit installed by Respondent was only 3 tons, without a change order authorizing a different size. 6. On July 30, 2015, Pennington issued a Directive from the Registrar, which stated: 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. Guesthouse drain lines half in and half out of stucco[.] 2. Guesthouse drain lines - Rusty water and stains in less than a year[.] 3. Guesthouse seams on duct work and handler not properly sealed[.] 4. The invoice stated 3.5 ton unit to be installed and the unit installed is a 3 ton. The room in the south west corner of the home appears to be substantially hotter than the rest of the home.

Correct by the appropriate means

7. This Directive contained a completion date of August 24, 2015, at 5:00 pm. During the time period specified in the complaint, Respondent corrected items 1, 2 and 3 in this Directive, but did not address the size of the air conditioning unit. Pennington therefore reviewed the matter to the Registrar’s legal department for review. 8. On September 28, 2015, the Registrar issued a Citation, containing three charges. Charge 1 referenced “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. Charge 2 reflected “[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).” Charge 3 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.” 9. On December 6, 2015, Conklin answered the Citation on Respondent’s behalf as follows: I, Michael Conklin representing Universal Desert State Air llc [sic] had a preliminary proposal with KF Builders to do the mechanical work at the listed address that was never signed in to contract by the builder. At proposal stage the size of the A/C units is based on the square footage on the floor plan prints and is likely to change after my company performs the manual J load calculations. This is required by APS, SRP and the city to avoid oversizing of the A/C units. Architects that draw these plans do not do A/C load calc’s nor are they qualified and usually plug in a size for the A/C units based on square footage, almost always oversized for the application. My company does the load calculations for proper sizing after the bid is excepted [sic] because it takes several hours to complete the study. Karl from KF Builders knows this and has signed a letter to me that gives me complete control of the A/C sizing. ([L]etter is enclosed – he signed this letter well after the completion of the project that is in question [.])

10. On December 14, 2015, Fosdick Enterprises Inc. dba, K F Builders filed a complaint with the Registrar alleging, among other things, that the Respondent had deviated from his proposal to install a 3.5 ton air condition unit in the Ory residence and installed a unit that was only 3 tons. 11. On March 7, 2016, the Registrar issued a Citation charging Respondent with the same three violations listed above. Respondent filed the same answer to this complaint. The complaints were therefore consolidated for hearing at the Office of Administrative Hearings (OAH). 12. Conklin testified that in his view both the architect who drew up the plans and Karl Fosdick left it up to Respondent to decide how large an air conditioner to put in the Ory residence. He indicated that because the choice of size was left up to Respondent, he did not feel the need to obtain a written change order before using a 3 ton unit, which he maintained was sufficient. Conklin stated that Respondent was the only one who had performed a load study. He said that the December 14, 2015 mechanical engineering report that recommended a 5 ton unit for the Ory guesthouse was not based on a load study and should be disregarded even though it was prepared by a mechanical engineer. Conklin acknowledged that the Ory residence had a “hot” room, but said the problem stemmed not from a capacity issue, but from a problem with balance and airflow. He noted that Respondent had offered to add a booster fan to address the issue, but the Orys had declined. 13. Pennington testified that the statement on the architectural plans that the mechanical contractor should verify the plans did not negate the need for a written change order if Respondent chose to use anything different than the 5 ton unit specified on those plans. Pennington also noted that the written agreement between Fosdick and Respondent signed in August 2015, after the Ory complaint was filed, did not permit Respondent to deviate from a 3.5 ton unit for the fixed price of $4,900.00 as agreed upon months before. Pennington noted that Respondent was unable to produce a load study created before work was performed. Instead, Conklin first produced a load study at the compliance inspection, leading Pennington to conclude he could not rely on it. Pennington found further support for the conclusion that the unit was undersized in the mechanical engineering report dated December 14, 2015. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible evidence in the file and confirmed by Pennington at hearing established that the air conditioning unit installed by Respondent deviated from both the city approved plans and the proposal submitted by Respondent to KF Builders. Moreover, the evidence suggests that the unit installed by Respondent was too small for the guesthouse and failed to adequately cool a room on the southwest side of the guesthouse. Accordingly, Complainants have met their burden to prove a violation of A.R.S. § 32- 1154(A)(2).[2] Respondent’s argument that it could unilaterally change the size of the unit specified in either the proposal or plans fails to give effect to the plans or proposal and is expressly rejected. 4. Undisputed credible evidence contained in the Registrar’s file established Respondent did work of questionable quality in the Ory home leading to the issuance of a Directive from the Registrar concerning poor workmanship. Pennington credibly testified that Respondent did not design or set up the air conditioning unit properly. Even Respondent agreed that as currently installed the unit needs a booster fan to address the fact that there is a “hot” room in the Ory guesthouse. Thus, Complainants established Respondent’s work on the above items was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[3] 5. Regarding a violation of A.R.S. § 32-1154(A)(22), although Respondent did correct items 1, 2 and 3 found by the Registrar, Respondent did not address item number 4.[4] An A.R.S. § 32- 1154(A)(22) violation is thus appropriate here given Respondent did not correct the undersized air-conditioning unit issue. Respondent offered to provide a booster fan, but acknowledged that the fan would not change the capacity of the unit called for by either the plans or the proposal. 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: 249198 and 258476 for a period of five (5) 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(E). 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, August 24, 2016.

/s/ Suzanne Marwil Administrative Law Judge

----------------------- [1] License No. 258476 was suspended for nonrenewal effective October 1, 2015 according to the Registrar’s website, which the Tribunal reviewed on August 23, 2015. [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.” [3] 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.” [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.” Emphasis added.

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