ALJDEC decisions subject to certification as final

2016A-2687-ROC · Registrar of Contractors · 2016-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Maxwell S. Stanerson,

COMPLAINANT,

v.

Pep Aire LLC,

License No: 292284

RESPONDENT.

No. 2016A-2687-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2016

APPEARANCES: Appellant Maxwell S. Stanerson appeared on his own behalf. Laura Bonnie Katz, Owner, and Jon I. Feldman, Owner and Qualifying Party, appeared on behalf of Respondent Pep Aire LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Pep Aire LLC (Respondent) is the holder of License No. 292284 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 20, 2014, Maxwell S. Stanerson (Complainant) entered into an agreement with Respondent for the installation of an air conditioner at his home for the total cost of $4588.85.

On or about June 29, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project including the failure to obtain a permit.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on September 2, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Permit required for installation of HVAC unit and inspection report to be sent to ROC Investigator.

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

Following the issuance of the written directive, Respondent attempted to contact Complainant regarding the corrective work outlined in the written directive. On or about August 28, 2016, Respondent texted Complainant, “Do I have permission to pull the permit & going to head to the manual J for your house yes or no.” Complainant responded via text, “Unit needs to be replaced,” and “Return my money & take the unit.” After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12); A.R.S. § 32-1158(B); and A.R.S. § 32-1154(A)(22).

Investigator Smith testified that he was able to substantiate that a permit was not pulled for the project. Investigator Smith clarified that the Registrar does not address whether the installation met applicable codes as that would be resolved during the permit process.

Complainant testified that he had attempted to contact Respondent during the two years between the installation of the air conditioner and the filing of the complaint. Complainant stated that the unit did not work properly since its installation. Complainant acknowledged he waited through two Arizona summers without a fully functional air conditioner before filing the instant complaint. Complainant alleged that he did not want to file a complaint against Respondent, but Respondent ignored his calls and texts for two years and that Respondent never offered to pull the permit for the project.

Jon Feldman, Respondent’s Owner and Qualifying Party, testified that Complainant had represented to him that Complainant was a general contractor and that he would obtain the permit on the project before the air conditioner was installed. Mr. Feldman stated that Complainant did not contact him with any complaints about the air conditioner after its installation. Mr. Feldman indicated that he attempted to comply with the Registrar’s directive, but Complainant would not allow him to enter the home to obtain the information necessary to obtain the permit or perform a Manual J calculation. Mr. Feldman stated that the unit was under a 10 year warranty, so any issue with the unit not working properly could be addressed by any authorized service provider.

Administrative notice is taken of Respondent’s prior License record on November 30, 2016. Such prior License record reflects that Respondent’s License No. 292284 was first issued on July 22, 2014, and is current. Such prior License record also reflects that there was one prior complaint that resulted in a finite suspension from May 11, 2016, through May 20, 2016, and two open complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The weight of the credible evidence established that the total contract price was more than $1000.00 and that Respondent did not provide Complainant with a written contract. Thus, Complainant established that Respondent failed to provide a contract with the elements required under A.R.S. § 32-1158.

The evidence established that a permit was not obtained on the project prior to the installation of the air conditioning unit. Unless the contract provides otherwise, it is the homeowner’s responsibility to obtain any applicable permits. However, the contractor should not perform any work until the required permits are obtained. In the absence of a written contract, it is not possible to determine if Respondent had the obligation to obtain the permit and/or had Complainant’s consent to proceed without the permit. Thus, Complainant failed to establish that Respondent disregarded the applicable building codes in violation of A.R.S. § 32-1154(A)(2).

The evidence established that Respondent attempted to compete the corrective work following the Directive being issued, but that Complainant would not allow Respondent to enter the property to obtain the information necessary to perform the Manual J calculation and obtain the permit. Rather, Complainant demanded that the unit be removed and Respondent refund Complainant the original contract price more than two years after the unit was installed. Because Complainant did not allow access for Respondent to comply with the written directive, he did not establish that Respondent violated A.R.S. § 32-1154(A)(22). This Tribunal concludes that the preponderance of the evidence of record was insufficient and failed to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

It is recommended that as a result of its violation of A.R.S. § 32-1158(B), Respondent’s license be suspended until such time that Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(B). If, prior to the effective date of the Registrar’s final order in this matter, Respondent provides such written proof, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant’s Complaint in Case No. 2016-2687.

It is further recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Maxwell S. Stanerson’s complaint in Case No. 2016-2687 against Respondent Pep Aire LLC’s License No. 292284 based on Complainant’s failure to provide Respondent access to comply with the written directive.

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, December 6, 2016.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors