ALJDEC decisions subject to certification as final

2016A-467-ROC-rhg · Registrar of Contractors · 2017-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wieslaw Malinowski,

COMPLAINANT,

v.

Cardinal Heating & Cooling Inc,

License No: 282148

RESPONDENT.

No. 2016A-467-ROC-rhg

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2017

APPEARANCES: Wieslaw Malinowski, Complainant; Dorota Malinowski, Complainant; Beau Cruz, Investigator for Registrar of Contractors; German Quijada, Respondent

ADMINISTRATIVE LAW JUDGE: Amy Foster

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (“the Registrar”) issued License No. 282148 to Respondent.

Respondent is a heating and air conditioning installer. On or about December 14, 2015, Complainants Wieslaw and Dorota Malinowski (Complainant) entered into a contract with Respondent for a new air conditioning unit including, among other things, replacing a metal stand and installing a custom sheet metal elbow/curb. Among other items, the contract has the provision, “Absolutely no verbal contracts will be honored.”

Respondent testified that he had an oral agreement with Complainant to provide a metal transition in lieu of the new elbow and stand because they could not reach the elbow and stand without harming the roof. Complainant testified that no such agreement existed and provided text messages that the oral agreement had never taken place. Both parties agree the contract was not amended to remove the provision about the new elbow and stand, nor was there a change order to that effect.

The job was completed on or about December 19, 2017. However, a metal stand and custom sheet metal elbow/curb was not installed. Instead, a metal transition was put in place to connect the old elbow to the new unit.

Complainants paid Respondent $2,951.11 on or about December 21, 2017.

On or about February 8, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had not replaced a metal elbow in their air conditioning unit as the contract had specified. Respondent had instead provided a metal transition.

Investigator Cruz reviewed Respondent’s work and noted that a new metal elbow and stand were not there, despite being on the contract. Investigator Cruz gave Respondent the opportunity to replace the metal elbow and stand in compliance with the contract.

Respondent installed a new metal elbow and stand but had to damage part of the foam on the roof in order to install said elbow. Respondent was not allowed to subcontract work and could not perform the roofing work himself as he is not licensed to do so. There were no complaints about the workmanship in the new metal stand and elbow.

Complainants contracted with another roofing company to complete the work. The invoice, dated July 14, 2016, is for $900.00. Respondent refused to pay the $900.00 because he did not feel it was in the scope of his contract to do roofing work. Investigator Cruz testified that because the contract included replacement of the new metal stand and elbow, but had no provisions about the roof and any work that needed to be done to the roof, Respondent was responsible for the $900.00. This is because the contract only stated “Replace metal stand; Install Custom Sheet Metal Elbow/Curb” and any work arising from that provision was the responsibility of Respondent.

Complainant subsequently requested a hearing on its complaint against Respondent. 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), and A.R.S. § 32-1154(A)(22).

Respondent filed a timely written answer to the Citation, disputing the charges asserting that Respondent and Complainant had verbally agreed to the change from a metal elbow to the metal transition before any work was done.

The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing on September 12, 2016, at 8:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record.

A hearing was held, however Complainants did not appear and the case was dismissed by the Registrar on or about October 18, 2016.

Complainants requested a rehearing on the grounds that they had not received proper notice. The Registrar of Contractors sent the claim to the Office of Administrative Appeals for a rehearing on or about December 13, 2016.

A rehearing was held on March 13, 2017, and all parties were present.

CONCLUSIONS OF LAW

A party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Ariz. Rev. Stat section 32-1154(A)(2) provides that:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: .... 2. “[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.

Ariz. Rev. Stat section 32-1154(A)(22) provides that:

Failure 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 preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat section 32-1154(A)(2) and 32-1154(A)(22) as alleged.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Case No. 2016A-467-ROC against Respondent Cardinal Heating & Cooling, Inc.’s License No. 282148 suspended until ROC receives and accepts written verification that Respondent Cardinal Heating & Cooling has paid to Complainants Wieslaw and Dorota Malinowski $900.00 in certified funds. If the payment is made before the date of the certification, no suspension shall take place.

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 is forty days after the date of that certification.

Done this day, March 13, 2017.

/s/ Amy Foster

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors