ALJDEC decisions subject to certification as final

2016A-692-ROC · Registrar of Contractors · 2016-08-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2016 APPEARANCES: Complainant Gwendolen Lee appeared on her own behalf. Respondent Penguin Air Arizona, LLC doing business as Penguin Air & Plumbing was represented by Kevin McCoy and Matthew Kelly. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License Nos. 291261 and 291262 to Penguin Air Arizona, LLC doing business as Penguin Air & Plumbing (Respondent). In December 2015, Gwendolen Lee (Complainant) entered into an agreement with Respondent via text messages and emails to install a new air conditioner and cut in vents in existing bedrooms and bathrooms and run duct work to those vents. On or about February 29, 2016, the Registrar received a complaint against Respondent from Complainant alleging Respondent had improperly removed two air conditioning units from the property, had charged for jump ducts and returns that were not authorized or installed, and charged for work that it failed to complete. After the Registrar assigned the Complaint to its investigator, Jack Grimm, for investigation, he performed a jobsite inspection. On or about April 25, 2016, Investigator Grimm issued a Directive from the Registrar which 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 5-11-2016.

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

1. Penguin Air & Plumbing charged for new jump ducts and returns that were never authorized or installed. Will Hallet has refused to make necessary adjustments to the estimate regarding these items.

Complete jump ducts, supply ducts (10 installed, 11 on contract) and register trims per contract. Repair drywall damage at return air location in family room.

NOTE: “The allegation of the stolen HVAC units does not fall under the jurisdiction of the AZROC, please contact your local law enforcement.”

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 or about May 4, 2016, Respondent contacted Complainant to set up a time to perform the work required in the Directive. Respondent informed Complainant that the work needed to be completed by May 11, 2016, per the Directive. Complainant stated she had not received a copy of the Directive at the time, but notified Respondent that she was unable to arrange a time for Respondent to perform the work before May 11, 2016, due to the short notice. Respondent asserted that it received the Directive on May 4, 2016, and contacted Complainant as soon as it received the Directive. Respondent acknowledged it did not notify the Registrar that it did not receive the April 25, 2016 Directive until May 4, 2016, and did not obtain an extension of the deadline based on the delay in receiving the Directive. Respondent argued that Complainant no longer wanted the jump duct to be installed, so even if Respondent had contacted her earlier, the work would not have been completed because Complainant did not want the work done. Respondent did not address the register trim or the repair to the drywall that was also required in the Directive. The work was not completed prior to the May 11, 2016 deadline. Complainant requested a hearing. As a result of the complaint, 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),[1] and a violation of A.R.S. § 32-1154(A)(22).[2] Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 15, 2016. Such prior License record reflects that Respondent’s Licenses 291261 and 291262 were current. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The weight of the evidence established that the work by Respondent was not in compliance with the Registrar’s workmanship standards. Therefore, Complainant established that Respondent did not perform the work 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).[3] 4. The undisputed credible testimony established that Respondent did not complete the corrective work identified in the written directive from the Registrar. While Complainant did not allow Respondent to perform the work between May 4, 2016, and May 11, 2016, Respondent did not afford Complainant enough time to arrange for such work to be done. Respondent also failed to notify the Registrar that it did not have an adequate amount of time to complete the corrective work because the Directive was not received in a timely manner. As such, Respondent did not establish that it was denied access to the home to complete the corrective work during the time frame identified in the written directive. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(22).[4] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Penguin Air Arizona, LLC doing business as Penguin Air & Plumbing’s License Nos: 291261 and 291262 for a period of one day. 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(D). 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, August 15, 2016.

/s/ Tammy L. Eigenheer 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.” [3] 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.” [4] 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.”

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