ALJDEC decisions subject to certification as final

2017A-4732-CHC-ROC · Registrar of Contractors · 2018-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebecca L Fowler,

COMPLAINANT,

v

.

Republic Air Care LLC,

License No: 276966

RESPONDENT

No. 2017A-4732-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 9, 2018

APPEARANCES: Rebecca Fowler, Complainant; Don Peterson, Respondent;

Steve Nelson, ROC Inspector.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On October 27, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 9, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

Respondent Republic Air Care LLC holds license number 276966 issued by ROC.

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 Respondent Republic Air Care LLC may have violated Ariz. Rev. Stat. §§32-1154(A)(3) and (A)(22). The Citation on its face states that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Respondent Republic Air Care LLC’s license.

Complainant Rebecca L Fowler entered into a written agreement with Respondent Republic Air Care LLC in which Respondent Republic Air Care LLC was to provide air conditioner/heat pump products and installation services at a manufactured home owned by Rebecca L Fowler.

On September 14, 2017, Rebecca L. Fowler filed a complaint with ROC alleging workmanship and other deficiencies on Respondent Republic Air Care LLC’s part. The Respondent filed a Response to the Registrar regarding the Complaint.

ROC Investigator Steve Nelsen conducted a Formal Job-Site Inspection on October 2, 2017. Neither the Complainant nor the Respondent were present for the formal job-site inspection. The Complainant’s son permitted Mr. Nelsen access to conduct his inspection. Mr. Nelsen explained at the hearing that upon entry into the Complainant’s residence, he noted that throughout the home, only sub-flooring was visible. He stated that all of the flooring had been removed. There was no finished flooring to be seen anywhere in the home. He observed pet waste on the sub-flooring. He stated that he noticed several areas of urine stain and odor from sub-flooring around the air conditioner unit.

Regarding the air-conditioner installation, Mr. Nelsen noted at the job site inspection there were copper condensate lines exposed and that a refrigerant insulated line was also exposed into the hallway. He noted that a cabinet that surrounded the prior air conditioner unit had to be removed for the current installation, but that the cabinet had not been re-installed. He noted that where there should be an air filter, there was none. Mr. Nelsen stated at the hearing that the air handler unit was not functioning.

Mr. Nelson issued to Republic Air Care LLC a Directive dated October 5, 2017.

From his observations, Inspector Nelson determined that Republic Air Care LLC. air conditioner product and installation services failed to meet ROC workmanship standards as follows:

Residential unit was installed instead of manufactured unit (Unit doesn’t fit appropriately).

No duct return box for proper filter support/ filter keeps falling through, and,

Repair damage to home caused by improper HVAC installation.

At the hearing, Mr. Nelson testified that it was his opinion that that Republic Air Care LLC’s services in this case constituted a violation of ROC “workmanship” standards. Through its directive, the ROC ordered Republic Air Care LLC to comply with the directive by appropriate means on or before October 21, 2017.

On October 22, 2017, Mr. Nelsen received e-mail notification from the Complainant that none of the action required by the directive had been done.

At the hearing the Respondent proved by the preponderance of the evidence that specifications for the air handler listed by its’ manufacturer Goodman, model ARUF61D14, is an appropriate unit to install in the Complainant’s residence [See, Exhibits ROC-C and R-1].

At the hearing the evidence proved by the preponderance of the evidence that:

The Complainant’s installed unit’s transformer had burned out due water exposure.

The source of the water that was exposed to the transformer was the condensation pan at the bottom of the evaporator coil. The condensation pan was covered with accumulated dust and animal hair and had overflowed.

The unit’s evaporator coil was also covered with accumulated dust and animal hair thus plugging airflow off on the unit completely.

The unit’s air filter had been completely left off of the unit. The air filter frame had been collapsing over a long period of time on a regular basis allowing debris to by-pass the filtering system and impinge on the efficiency of the unit.

The unit’s failure and subsequent water damage is not due to poor workmanship or to manufacture defect. Instead, the blocking of the unit’s evaporation system from debris accumulation in the condensation pan, debris caked on the unit’s coils, debris entering the unit from an absence of an air-filter - all combined to plug the evaporation run-off’s drain system. The plug of evaporation run-off’s drain system is the efficient cause of the unit’s transformer being exposed to water causing the transformer to burn out. The lack of reasonable and necessary maintenance and care by the Complainant is the apparent efficient cause of both the system malfunction and water damage caused by the over-flowing condensation pan.

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).

Republic Air Care LLC is not an “...unscrupulous, unqualified, [or] financially irresponsible contractor.”

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 ....

3. Violation of any rule adopted by the registrar.

....

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.

A contractor is subject to discipline for violation of any Rule adopted by the Registrar. [Ariz. Rev. Stat. § 32-1154(A)(3)]. The Registrar has charged Respondent with violating Ariz. Admin. Code § R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards.

The failure of the air handling unit installed in Complainant’s home by the Respondent [and subsequent water damage to Complainant’s residence] was not due to poor workmanship by the Respondent or to manufacture defect.

The lack of reasonable and necessary maintenance and care by the Complainant is the apparent efficient cause of both the system malfunction and water damage caused thereby.

A preponderance of the evidence demonstrated that Republic Air Care LLC did not violate Ariz. Admin. Code § R4-9-108 and thus, did not violate Ariz. Rev. Stat. §32-1154(A)(3) by failing to perform its work in a professional and workmanlike manner and in accordance with professional industry standards.

The preponderance of the evidence shows that Republic Air Care LLC did not violate violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive.

RECOMMENDED ORDER

IT IS RECOMMENDED that Rebecca L Fowler’s complaint against Republic Air Care LLC, ROC License number 276966 be dismissed and that this matter be closed.

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 25, 2018.

/s/ Randolph Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors