ALJDEC decisions subject to certification as final

2015A-3111-ROC · Registrar of Contractors · 2016-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2016 APPEARANCES: Carole Louise Burris (Complainant) appeared on her own behalf. 24/7 AC LLC. (Respondent) was represented by its owner, qualifying party and authorized representative, Clemente Leal. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant 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 is the owner/occupant of a residence located at 20211 North 105th Avenue, Peoria, Arizona 85382. 2. Respondent holds Arizona Contractor’s License No. 282829. 3. On July 20, 2015, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work in when installing an air handler in her home, resulting in a water leak and damage to drywall. The complaint also specified, among other things, that Respondent had failed to seal duct work, that the pan underneath the air handler was out of place, that the air handler was not level and was not secured properly, that the outside connections to the air handler were improperly resting on framing “members,” that the thermostat wiring was unsecure and leaking water, and that insulation from the old air handler was thrown in the attic rather than placed on the new air handler. 4. The Registrar assigned investigator Timothy Pennington to investigate the complaint. Pennington testified that he arranged to perform an inspection on September 8, 2015, and notified Complainant and Respondent of the time and place of the inspection. Complainant and her son Brent Burris were present at that inspection. Grimm indicated that at the time of an inspection, he substantiated some but not all of Complainant’s allegations. Specifically, Pennington stated that he found evidence of dry wall damage from the leak, that the pan under the air handler was out of place, and that the duct work was not sealed. He also used a leveler to determine that the air handler installed by Respondent was not level. Pennington determined that there was no reason insulation should be on the air handler. 5. On September 9, 2015, Pennington sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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. Pan out of place under attic air handler. 2. Duct not sealed properly or connected to air handler properly, collapsing. 3. Air handler unit in attic, is not level. 4. Drywall and paint damage in hallway and bedroom closet caused by improper install of air handler.

Item 4 is out of scope of the license[;] 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 your deficient workmanship or by reaching a financial settlement with Complainant.

Correct by the appropriate means

6. The Directive stated that the above work had to be completed by 5:00 p.m. on September 25, 2015. 7. During the period specified in the Directive, the parties reached a settlement of item number 4 whereby Respondent paid another contractor to fix these issue. Respondent also corrected items numbers 1 and 2. 8. On October 2, 2015, Pennington performed a compliance inspection at Complainant’s home. He found that Respondent had corrected items numbers 1, 2, and 4, but had not corrected number 3. His compliance inspection notes reflect that the “unit not level from north to south ½” drop.” 9. Pennington subsequently forwarded the matter to the Registrar’s legal department for review. 10. On November 20, 2015, Complainant filed an amended complaint to add the items of Freon touching trusses and fallen down insulation. 11. The Registrar’s legal department sent the file back to Pennington for further inspection. 12. Pennington testified that he performed an inspection regarding the amended complaint items on December 8, 2015. He noted that neither item was substantiated given that Freon can touch trusses without violating any code and he could not establish that Respondent was responsible for the insulation that fell down. Accordingly, Pennington sent the file back to the legal department with for review. He indicated that the air handler remained out of level as of his inspection on December 8, 2015. 13. On February 1, 2016, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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 2 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.” 14. On January 13, 2016, Respondent telephoned Pennington and informed him that he had leveled the air handler unit. Respondent also provided the Registrar pictures that it claimed proved the unit was now level. 15. On January 14, 2016, Pennington returned to Complainant’s home to inspect the air handler. He found that while Respondent had put new straps on the air handler, it remained out of level. Pennington explained that the level he used showed that while the unit was level in one direction, in the other direction it was out of level by ½ inch. Pennington stated that he spoke to Tim Kneipp, who was Trane certified and confirmed that the manufacturer’s specifications only permit a unit to be 1/8 inch out of level. 16. Complainant testified that the newly installed air handler began to leak immediately after Respondent installed it. She noted that Respondent said it would come back to complete its work within three days, but failed to do so. Sometime thereafter, she discovered the leak and filed the complaint with the Registrar. She emphasized that Respondent’s workers had performed poor quality work, and had not made the unit level. She believed the unit was damaged. She indicated she kept finding more problems with Respondent’s installation of her air handler unit, which she acknowledged would have to be the subject of another complaint with the Registrar. 17. Brent Burris testified that he has over 20 years of construction experience, but has never installed an air handler because he is neither licensed nor certified to do so. He denied tampering with the air handler in any way before the complaint was filed. He said he first removed a cover from the air handler and cut through a patch in March 2016. He said he could not tell from the pictures submitted by Respondent whether the air handler was level, but that he did not believe the unit was level. 18. Clemente Leal testified that he was aware that the two employees who installed Complainant’s air handler did “shoddy” work. He explained that he had hired these individuals to accommodate the higher volume of summer work and that they had been terminated. He acknowledged that Respondent was responsible for its employees’ work. He noted Complainant was told Respondent’s workers had to come back to finish the installation because they did not have the equipment needed to finish the install. Leal indicated that he knew Complainant intended to use the air handler to cool her house for herself and her dogs even though so items remained unfinished. 19. Leal noted that he has always been willing to come back and fix any issues as he did with the drain pain and duck work issues. He adamantly believed that he had corrected all of the issues in the Directive and in particular that the air handler was level as shown by the pictures he submitted to the Registrar on February 15, 2016. 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, Complainant 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 testimony established Respondent performed substandard work when installing Complainant’s air handler resulting in a leak, damage to drywall, a pan that was out of place and duck work that was not sealed. Respondent’s qualifying party conceded that the work done by its former employees was “shoddy.” Thus, Complainant established Respondent’s work on the items specified in the Directive 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).[1] 4. An A.R.S. § 32-1154(A)(22)[2] violation is not warranted, however, given that Respondent made an effort to complete all of the items in the Directive. Moreover, the record reflects that Respondent did in fact correct items numbers 1, 2 and 4. In addition, Respondent genuinely believed that its corrective work resulted in Complainant’s air handler becoming level as shown in the pictures it submitted to the Registrar. Although the Tribunal finds Pennington’s testimony that the air handler remained more than 1/8 of an inch out of level credible, these sorts of minor deviations of a manufacturer’s specifications do not justify imposing a civil penalty under the specific facts of case. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend 24/7 AC’s LLC’s License No. 282829 for a period of three (3) days. 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, May 3, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” [2] 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.

-----------------------

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