ALJDEC decisions subject to certification as final

2017A-411-CHC-ROC · Registrar of Contractors · 2017-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alexander and Mabel Kadet

COMPLAINANT

-v-

Air Tech Air Conditioning and Heating, LLC,

License No. 167369,

RESPONDENT

No. 2017A-411-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 13, 2017

APPEARANCES: Daniel Glen Shumway for Complainant; Robert Smith for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

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FINDINGS OF FACT

On May 3, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 13, 2017 at the Office of Administrative Hearing.

Respondent Air Tech Air Conditioning and Heating, LLC, holds license No. 167369 issued by ROC.

Robert Smith is Air Tech’s qualifying party.

The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.

Through the Citation, ROC alleges that Air Tech may have violated Ariz. Rev. Stat. sections 32-1154(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 Air Tech’s license.

In December 2016, Complainant(s) Alexander and Mabel Kadet, contracted to have Air Tech replace their furnace and put down a deposit with Air Tech.

Complainants subsequently decided that they did not want the furnace replaced, but when Mr. Smith informed them that they would forfeit their deposit if they canceled their order, the Kadets decided to go forward with the furnace replacement.

On December 22, 2016, Air Tech installed the new furnace.

While installing the Kadets’ furnace, Mr. Smith observed that the air conditioning coil located above the furnace was old and corroded, and needed to be cleaned. Mr. Kadet authorized Air Tech to clean the coil.

According to Mr. Smith, the coil could not be cleaned, and he spoke to Mr. Kadet and Bryan Van Benthusen, Mr. Kadet’s great-nephew. For the most part, Mr. Smith was talking to Mr. Van Benthusen who was talking directly to Mr. Kadet. Mr. Smith provided credible testimony that through this conversation, Mr. Kadet authorized him to replace the coil. Neither Mr. Kadet nor Mr. Van Benthusen appeared at the hearing and Complainants presented no substantial evidence to show that they had not authorized Air Tech to replace the coil.

Air Tech shunted the refrigerant to the outside and checked a gage to verify that the line was clear. Air Tech then took a break, but did not recheck the gage before it began soldering the coil to remove it. There was a flash-over or explosion that Mr. Smith states was due to the coil having residual gas or oil in it. ROC investigator Michael Springer acknowledged that he was not an expert in air conditioning, but his opinion was that Mr. Smith’s explanation of what happened made sense.

Although the flash/explosion was loud and bright, it was minor enough that Mr. Smith who was next to the coil did not suffer any burns or other ill effects.

There was no substantial evidence adduced to show that the flash-over/explosion damaged the air conditioner coil.

Air Tech quoted the Kadets a price of $1400 to replace the coil, but Air Tech did not have the coil with it.

Ms. Kadet wrote Air Tech a check for $1620, which was the remaining balance for the furnace replacement, and Mr. Smith left the house with the understanding that he would hear back from the Kadets regarding the coil.

On December 23, 2016, the Kadets stopped payment on the $1620 check based on their belief that Air Tech was responsible for the damage to the air conditioner coil.

Air Tech had introduced into evidence a check from Ed Hendricks to Air Tech in the amount of $500 and a letter from Mr. Hendricks to Mr. Smith, both of which are dated January 5, 2017. The letter shows that Mr. Hendricks wanted Mr. Smith to purchase the coil, that they would then try to schedule a date to complete the work, and that he was hoping to assist the Kadets and Air Tech in resolving their dispute based on his friendship with the Kadets. Ms. Kadet testified that she had not authorized Mr. Hendricks to do this and that she had not wanted him to get involved.

At some point, Mr. Smith informed the Kadets that if payment was not made for the furnace, Air Tech would place a lien on their home. Air Tech did place such a lien and on January 23, 2017, after receiving the lien notice, the Kadets filed their complaint with ROC.

In response to the Kadets’ complaint, ROC’s Mr. Springer conducted a job-site inspection on February 23, 2017.

On February 27, 2017, ROC issued to Air Tech a Directive that required Air Tech to correct by appropriate means: “Replace coil removed from system and make operable.” The Directive shows that ROC had determined that any other workmanship violations alleged in the Kadets’ complaint were unsubstantiated.

The Directive required Air Tech to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. March 16, 2017.

On March 7, 2017, Mr. Smith sent to Mr. Springer an email requesting clarification as to whether ROC was requiring Air Tech to reinstall the old coil it had removed. Exhibit A. Mr. Smith testified that he did not hear back from ROC.

Exhibit A shows that it was addressed to [email redacted]. It is reasonable to conclude that this is not Mr. Springer’s email address as his name is misspelled.

As of the hearing date Air Tech had not replaced the coil. The Kadets had submitted into evidence an invoice $2750 for work to replace the coil and make the unit operational.

As of the hearing date, the parties were engaged in civil litigation regarding this matter.

CONCLUSIONS OF LAW

Unless otherwise provided by 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.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

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) 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:

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3. Violation of any rule adopted by the registrar.

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22. 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 written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

It has not been shown by a preponderance of the evidence that Air Tech was responsible for any damage to the air conditioner coil. The evidence establishes that the Kadets and Air Tech entered an oral agreement under which Air Tech was to replace the air conditioner coil. That agreement was not carried to fruition because the Kadets stopped payment on the check for the furnace replacement. This matter is a contract dispute that should be resolved through the civil court system.

The preponderance of the evidence does not show that Air Tech violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to perform its work in a professional manner because the evidence does not show that Air Tech caused any damage to the coil.

The preponderance of the evidence does not show that Air Tech violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Air Tech has a valid justification for its failure to comply.

Consequently, the Citation should be dismissed.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final Order in this matter, the Citation in Case No. 2017-411 and the complaint on which it is based are 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, July 19, 2017

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors