FINACT2017A-3048-CHC-ROC.pdf

2017A-3048-CHC-ROC · Registrar of Contractors · 2018-03-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Stephanie Burkett, Case No. 2017-3048

COMPLAINANT, Docket No. 2017A-3048-CHC-ROC

v. FINAL ADMINISTRATIVE DECISION AND M V P Air Conditioning, LLC, ORDER License No. 263169, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on April 11, 2018. Dated this 2nd day of March 2018. Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail this 2nd day of March 2018 to: Respondent M V P Air Conditioning LLC 6902 N Camino Martin Ste 140 Tucson, AZ 85741-2362 Complainant Stephanie Burkett 3376 W Tranquility Ct Tucson, AZ 85741-1230 Copy sent electronically this same date to: Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2017-3048/an

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 2.22.2018 LEGAL IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stephanie Burkett, No. 2017A-3048-CHC-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE DECISION M V P Air Conditioning LLC , License No: 263169 RESPONDENT.

HEARING: February 1, 2018 APPEARANCES: Complainant Stephanie Burkett appeared on behalf of herself. Jeff Vogler appeared on behalf of Respondent M V P Air Conditioning, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On December 7, 2017, the Registrar of Contractors (“Registrar”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on February 1, 2018, by the Office of Administrative Hearings in Tucson, Arizona. 2. Respondent M V P Air Conditioning, LLC (“M V P Air Conditioning”) holds license number 263169 issued by the Registrar. 3. The NOTICE OF HEARING shows that the hearing was set to consider the charges made in the CITATION and COMPLAINT. 4. Through the CITATION, ROC alleges that M V P Air Conditioning may have violated ARIZ. REV. STAT. sections 32-1154(A)(2), (A)(3) and (A)(22). The CITATION shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke M V P Air Conditioning’s license.1

The CITATION shows that ROC could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 2.22.2018 LEGAL

5. On or about June 17, 2015, Complainant Stephanie Burkett (“Ms. Burkett”) entered into an agreement with M V P Air Conditioning in which M V P Air Conditioning agreed to install an air conditioner in Ms. Burkett’s home. 6. On or about June 15, 2015, M V P Air Conditioning began the installation. On or about June 23, 2017, M V P Air Conditioning completed the installation. 7. On or about June 14, 2017, the Registrar received a complaint from Ms. Burkett alleging poor workmanship on the part of M V P Air Conditioning. 8. On or about September 25, 2017, Ms. Burkett field an addendum to the complaint. 9. On or about October 23, 2017, Registrar Investigator John Smith (“Investigator Smith”) conducted a job-site inspection. 10. On or about October 26, 2017, Investigator Smith issued to M V P Air Conditioning a DIRECTIVE. The October 26, 2017 DIRECTIVE provides, in relevant part, 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 notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 14, 2017. You are hereby directed to remedy the following violations by the appropriate means: 1. “The installation instructions for the air handler states “Do not connect the drain to a closed drain system.””

2. “Approximately 50 feet of new duct work was installed; this work is not covered by the ACT permits. The work is essentially unpermitted.” This work needs to be inspected and approved by the Pima County Building Department.

11. On November 10, 2017, M V P Air Conditioning provided a proposal to Ms. Burkett regarding how it would remedy the items listed on the Directive. 12. On November 13, 2017, Investigator Lawson received an electronic mail message (“e-mail”) from Ms. Burkett stating that she had received a proposal from RECEIVED 2.22.2018 LEGAL

M V P Air Conditioning with some options regarding how to correct the condensating drain line. Mr. Burkett informed Investigator Lawson that she did not believe the proposal was acceptable or possible. Ms. Burkett stated that piping on the exterior would have to obtain HOA approval. Investigator Smith told Ms. Burkett that he could not advise M V P Air Conditioning how to perform its corrective work. 13. Ms. Burkett did not inform M V P that its proposal was not acceptable during the timeframe for compliance under the Directive. 14. Ms. Burkett obtained a permit from Pima County for the corrective work. 15. On November 17, 2017, Ms. Burkett sent an email to M V P Air Conditioning regarding its proposal. The November 17, 2017 email provides, in relevant part, as follows: Good Morning, Thank you for the proposal. As you are probably aware, the last and only option presented will not work for several reasons. While the proposal is not to scale, there are windows missing in this plan. The most important, the piping would need to go over the exterior stucco, a bathroom window and then come down in front of the bedroom window. It ends over a brick patio that slops towards the house. We have experienced flooding issues due to the sloping issues and it would not be possible to put the end at this location or anywhere else on the east side of the home. These are only a few of the reasons. I also still have a popping noise coming out of the condensation drain that is most notable in the bathroom sink and that was left worse after the p trap was removed in October. I will try to send you the video but not sure it will come through as I am traveling for work and having issues getting the file to copy. I can discuss when I return. Thank you, Stephanie 16. On or about November 22, 2017, Investigator Smith conducted a compliance inspection. Investigator Smith concluded that Complaint Item #2 had been corrected Complaint Item #1 had not been corrected. 17. On January 30, 2018, Investigator Smith conducted a prehearing inspection and concluded that Complaint Item #1 had not been corrected. 18. At hearing, Ms. Burkett contended that she would have to obtain approval from her HOA before installing piping on the exterior of her stucco. Ms. Burkett testified that M V P performed poor work and that even the options presented her were substandard.

RECEIVED 2.22.2018 LEGAL

19. M V P contended that it attempted to comply with the Directive during the time period for compliance, but Ms. Burkett would now allow M V P to repair the work it in the manner it proposed. Furthermore, M V P argued that it was not aware of the rules of Ms. Burkett’s Homeowner’s Association. 20. Administrative notice is taken of Respondent’s prior License record on February 21, 2017. Such prior License record reflects that Respondent’s License No. 263169 was first issued on March 4, 2010, and is current. Such prior License record also reflects that has been no prior disciplinary action taken against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 4. The preponderance of the evidence does not show that M V P Air Conditioning violated ARIZ. REV. STAT. section 32-1154(A)(2). 5. The preponderance of the evidence does not show that M V P Air Conditioning violated ARIZ. REV. STAT. section 32-1154(A)(22). While there were workmanship issues as identified in the written Directive, contractors are not expected to perform flawless work without an opportunity to correct it. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written Directive. The preponderance of the evidence shows that Ms. Burkett denied access to M V P Air Conditioning because she did not allow M V P Air Conditioning to repair the work in the manner that M V P Air Conditioning believed to be most appropriate.

RECEIVED 2.22.2018 LEGAL

6. The preponderance of the evidence established that Ms. Burkett denied M V P Air Conditioning reasonable access to her residence to comply with the terms of the written Directive issued in this matter. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDED ORDER In view of the foregoing, it is recommended that this matter be dismissed. 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, February 21, 2018

Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors