ALJDEC decisions subject to certification as final

2016A-3041-ROC · Registrar of Contractors · 2017-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

April Keys,

COMPLAINANT,

v.

911 Heating Cooling and Plumbing LLC,

License Nos: 305217 and 307486,

RESPONDENT.

No. 2016A-3041-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 6, 2017

APPEARANCES: April Keys appeared on her own behalf. 911 Heating Cooling and Plumbing, LLC (Respondent) was represented by Scott Richardson, Esq.

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

Complainant April Keys is the occupant of a residence located at 17712 North Kimberly Way, Surprise, Arizona 85374

Respondent holds Arizona Contractor’s License Nos. 305217 and 307486,

On August 15, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed substandard work installing an air conditioning unit in her home, resulting in a unit that did adequately cool the house, attic access that had been torn apart and an abnormal vibration noise in the kitchen when the unit was running.

The Registrar assigned investigator Russell Reed to investigate the complaint. Reed testified that he arranged to perform an inspection September 6, 2016, and notified Complainant and Respondent of the time and place of the inspection. Only Complainant were present at that inspection. Reed indicated that at the time of an inspection, he substantiated that the unit failed to cool the living room and kitchen to 78 degrees. Reed also verified that the crawl space trim was removed and never put back, resulting in the attic being left open. Reed also heard and felt vibration noises in the kitchen while the air condition ran.

Reed’s jobsite inspection notes reflect that he spoke with Jeff Neveau of Respondent after the inspection and that Neveau agreed with the items found and was working with York, the manufacturer of the air conditioning unit, to resolve the vibration issue.

On September 7, 2016, Reid drafted a Directive from the Registrar, which stated in pertinent part that:

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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 23, 2016.

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

Vibration and abnormal noises when unit is running.

Living room and kitchen area does not cool to 78°

Attic crawl space not re installed.

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

On September 23, 2016, Reed telephoned Complainant to determine if Respondent had complied with the Directive and was told that the Respondent had not complied.

On September 26, 2016, Reed performed a compliance inspection at Complainant’s home. He determined that the unit still did not cool correctly given that the thermostat of the unit read 72 degrees and the interior temperature of the home measured 86 degrees according to Reed’s state-issued thermometer. Reed observed that Respondent had repaired the attic crawl space .At that point, he forwarded the file to the Registrar’s legal department.

On September 27, 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. The written directive shall set forth the time within which the contractor is to complete the remedial action.”

Following the issuance of the Citation, the legal department referred the matter back to Reed because he had not investigated certain allegations made by Complainant in an amended complaint. The amended items concerned, among other things, issues with duct work, a damaged switch, the cutting of a trusse in order to install the air conditioning unit and stucco damage.

By the time Reed inspected these issues on November 30, 2016, all items except the stucco damage had been appropriately repaired. See Exhibit A. Reed was told that that the cut trusse had been repaired according to a structural engineer’s stamped recommendation. At hearing, Respondent produced a letter confirming that a structurally engineered repair of the trusse was completed before October 13, 2016.

Reed issued another Directive related to the stucco damage, but took no further action after Complainant informed him that all of the issues had been fixed.

Reed preformed a prehearing inspection and confirmed that Respondent’s house cooled properly and that al all of the deficiencies in both Directives had been fixed.

Respondent indicated that on September 28, 2016, it paid Insane Air, a contractor of Complainant’s choosing, to replace the defective air conditioning unit. Michael Saldivar, Respondent’s general manager, testified that Respondent paid approximately eight to ten thousand dollars to purchase a new unit and have it installed by Insane Air. Saldivar also indicated it provided Insane Air all equipment it needed to complete the installation of the new air conditioning unit. He noted that Respondent also fixed all the other issues identified in the Directives.

Complainant acknowledged that she now had a functioning air conditioning unit, but expressed frustration that it had taken for months to resolve this issue, during which time she lived in a house that only cooled to temperatures in the eighties and nineties. She conceded that the cut trusse had been repaired but expressed concern that Respondent’s action’s in cutting the trusse had damaged the structural integrity of the home and affected its market value. She noted that she had paid Insane Air $648.00 for duct work, but acknowledged that her contract with Respondent did not include duct work.

Complainant’s boyfriend, Richard Stewart, testified that Respondent continually “dropped the ball” and did not fix Complainant’s problem. He found Respondent incompetent and unprofessional. He indicated that Respondent attempted multiple fixes, but ultimately the problem was not resolved until he convinced Respondent to let Insane Air install a different unit.

Respondent took the position that because it had corrected all of the issues, Complainant had been made whole such that the Registrar’s regulatory concerns had been satisfied. Respondent noted that Complainant’s complaints of pain and suffering as well as loss of home value did not fall within the Registrar’s jurisdiction.

CONCLUSIONS OF LAW

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.

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).

Undisputed credible testimony established Respondent did work of questionable quality in Complainant’s home, including installing a defective air conditioning unit and failing to repair the attic crawl space following the installation.

Thus, Complainant established Respondent’s work installing the air conditioning unit and failing to repair the crawl space after installation was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Regarding a violation of A.R.S. § 32-1154(A)(22), although Respondent was a couple of days later in complying with the September 7, 2016 Directive and arranging for the installation of a new air conditioning unit, the Tribunal finds that assessing a civil penalty on these facts is not warranted. The record reflected that Respondent made ongoing, good faith attempts to repair the unit and when those failed, paid a contractor of Complainant’s choosing to install a new unit that operates appropriately. The evidence demonstrated that Respondent has repaired all the deficiencies contained in both Directives. On this record, the Registrar’s regulatory concerns have been met, obviating the need for a civil penalty.

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. 305217 and 307486, for a period of one (1) day.

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, February 9, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors