ALJDEC decisions subject to certification as final
2017A-923-CHC-ROC · Registrar of Contractors · 2017-07-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kehaulani Suzanne Kerr,
COMPLAINANT,
v.
Pep Aire LLC,
License No:
292284
RESPONDENT.
No. 2017A-923-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 30, 2017
APPEARANCES: Kehaulani Suzanne Kerr, Complainant; Jon Feldman, member and qualifier, on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
1. Pep Aire LLC, (Respondent), is the holder of License Number 292284 issued by the Registrar of Contractors (Registrar).
2. On or about January 31, 2017, Complainant Kehaulani Suzanne Kerr (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with removal and re-installation of an HVAC unit and installation of related duct work at Complainant’s residence.
3. After an inspection of the site on March 9, 2017, the Registrar then issued a Directive on March 15, 2017, for the alleged violation of Arizona Administrative Code Rule 4-9-108 for the failure by Respondent to meet minimum workmanship standards relating to the absence of a building permit for the work performed.
4. On April 20, 2017, the Registrar issued a Citation for alleged violations of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards), A.R.S. § 32-1154(A)(12) (failure in any material respect to comply with this chapter (violation of A.R.S. § 32-1158(B)), and A.R.S. § 32-1154(A)(22) (failure to take corrective action). The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
5. The Registrar issued a Notice of Hearing setting a hearing for June 30, 2017, at 1:00 P.M. The hearing was held on June 30, 2017, at 1:00 P.M. Complainant and Respondent both testified. Complainant also presented the testimony of Caroline Patrick Birdwell. Greg Johndrow testified on behalf of the Registrar.
6. Greg Johndrow on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that there was no building permit issued for the work performed by Respondent even though a permit had been required.
7. Complainant testified that there were air flow problems after Respondent completed the job and that the residence was left without heat for two months in 2016. She testified that one of the rooms of the residence still has no air flow.
8. Caroline Patrick Birdwell, who is an owner of the residence, testified that the project initially was going to consist of Respondent removing the HVAC system on the roof so that roofing work could be performed by another contractor. Once removed, Respondent indicated he found mold in the duct work and advised Complainant that it would need to be replaced. The job cost was $5,840, for which Respondent was paid in full.
9. Ms. Birdwell testified that Complainant consented to the duct work but that the new duct work was installed by Respondent in a new configuration. Ms. Birdwell further testified that the HVAC unit was repositioned on the roof from its original location.
10. Jon Feldman on behalf of Respondent testified that he shortened the duct work by 12 feet from its earlier configuration and repositioned it in order to make it more efficient. He also repositioned the HVAC unit because he believed it had been too close to the edge of the roof and did not comply with building codes.
11. Complainant and Ms. Birdwell testified that they were never told nor did they ever consent to the repositioning of the duct work or the HVAC unit.
12. Mr. Feldman testified that he did not obtain a building permit or advise Complainant to do so because he believed the existing HVAC unit was “illegal” because he found no building permit on file for its original installation.
13. With respect to the alleged violation of A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1158(B) regarding failure to include minimum elements of a contract, Mr. Feldman testified that he has presented a new form contract to the Registrar that Respondent will use in the future.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a preponderance means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 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:
...
2. Departure 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.
...
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....
5. Complainant has presented sufficient evidence to demonstrate the departure from or disregard of plans or specifications or any building code standards on the part of Respondent by proceeding with the work without a building permit and the failure to undertake any corrective action in that regard without valid justification.
6. It is undisputed that there was no building permit obtained before Respondent commenced the work. Respondent further does not dispute that a building permit was required for the work he performed. The fact that a building permit may or may not have been issued for the original installation of the HVAC unit does not excuse the need for a building permit for the work Respondent performed and is not a valid justification for the failure to take corrective action.
7. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Pep Aire LLC’s, License Number 292284 is suspended for two days.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, July 20, 2017.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors