ALJDEC decisions subject to certification as final

2016A-2829-ROC · Registrar of Contractors · 2017-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Johnathan Lamar Davis,

COMPLAINANT,

v.

Worlock Mechanical Contractor, LLC,

License No: 273567, 273566,

RESPONDENT.

No. 2016A-2829-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 17, 2017

APPEARANCES: Complainant Johnathan Davis appeared on his own behalf. Respondent Worlock Mechanical Contractor, LLC was represented by Fidelis V. Garcia.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Worlock Mechanical Contractor, LLC (Respondent) is the holder of License Nos. 273567 and 273566 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 12, 2015, Johnathan Davis (Complainant) entered into a contract via email with Respondent for the installation of a new heat pump for a total contract price of $5,096.00.

On or about August 2, 2016, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Russell Reed. After a jobsite inspection, Investigator Reed 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 12th, 2016.

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

Obtain proper permit as required by the city.

A/C does not maintain 78°. Rule 4-9-108; Unit should cool structure 30° (32° in Scottsdale) lower than outside air temperature when measured in center of room at 5’ height. Minimum indoor temperature should be 78°.

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 obtained an inspection from the City of Phoenix and was given a green tag on September 9, 2016. Respondent did not perform any corrective work on the unit itself.

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

Investigator Reed testified that during the initial inspection, he discovered that Respondent had not pulled a permit for the unit. Also, the unit was not cooling the air to 78 degrees. Investigator Reed stated that the compliance inspection was performed in the morning and the outside temperature was only 85 degrees. While the unit was able to cool the temperature to 75 degrees at that time, Investigator Reed testified that he did not believe the unit would be able to cool the air to 30 degrees below the ambient air temperature when temperatures reached into the 100’s. Investigator Reed did testify that, based on information he heard during the opening statements, he did not believe Respondent could comply with the written directive and should not be disciplined in this matter; however, as will be discussed infra no evidence supporting many of those statements was presented during the hearing.

Complainant testified that he was deployed overseas and his mother was residing in his home when he was informed the heat pump on the home was no longer operating properly. Complainant then went online and used the Home Advisor referral service to locate a contractor to install a new unit. Through Home Advisor, Complainant was put into contact with Respondent. Via email, Complainant negotiated a contract to replace the unit on the home with a new unit. According to Complainant, Respondent never informed him that the previous unit was a 5 ton unit that was being replaced with a 3 ton unit; rather, Complainant stated that he understood Respondent would replace the unit with a new unit of the same size. Complainant testified that Respondent never informed him that the wiring and duct work would only safely support a 3 ton unit, which would not cool as effectively as the previous 5 ton unit and never discussed the option of putting in a split system or updating the electrical and duct work. Respondent did not seek and/or obtain a waiver from Complainant acknowledging that the new 3 ton unit was undersized for the square footage of the house, but a larger unit could not be installed. Complainant indicated that when he complained that the unit was not properly cooling the home, Respondent recommended he install additional insulation. Even then, Respondent did not inform Complainant that the 5 ton unit had been replaced with a 3 ton unit. Complainant acknowledged there was an addition on the home that existed when he purchased the home in 2013.

Respondent did not present any evidence or witnesses to testify. During opening statements and closing arguments, counsel for Respondent made various assertions regarding the safety concerns that prevented it from installing a new 5 ton unit. However, Respondent did not present any evidence to establish that the electrical and duct work would not support a 5 ton unit.

Administrative notice is taken of Respondent’s prior License record on May 24, 2017. Such prior License record reflects that Respondent’s License Nos. 273567 and 273566 were first issued on June 17, 2011, and were current. Such prior License record also reflects that there were no prior 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). Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. See A.A.C. R2-19-119(B)(2). “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 uncontroverted evidence presented at hearing established that the unit installed by Respondent did not appropriately cool the air in Complainant’s home in accordance with the Registrar’s standards. Even assuming a 5 ton unit could not have been installed due to electrical and duct work constraints, Respondent should have informed Complainant of those limitations prior to installing the new unit. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

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. 273567 and 273566 for a period of 3 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, May 26, 2017

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors