ALJDEC decisions subject to certification as final

2018A-05951-CHC-ROC · Registrar of Contractors · 2019-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 24, 2019 APPEARANCES: Complainant Sylvia Moraga Resendiz appeared on her own behalf. Jose D. Rascon, Owner, appeared on behalf of Respondent Pronto Air Conditioning & Refrigeration LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Pronto Air Conditioning & Refrigeration LLC (Respondent) is the holder of License No. 315742 issued by the Arizona Registrar of Contractors (Registrar). Prior to June 2018, Sylvia Moraga Resendiz (Complainant) contacted her home warranty company regarding her air conditioning unit. A new air conditioning unit was approved and the home warranty company contracted with Respondent to install the unit for Complainant. On or about June 3, 2018, Respondent installed the unit. Complainant noted issues with the air conditioning unit right away. On or about June 14, 2018, Respondent inspected the unit and discovered a piece of insulation stuck by the blower. On or about June 28, 2018, Respondent returned to inspect the unit due to noise complaints. Respondent did not note any noises. On or about February 14, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that 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 3-8-2019. You are hereby directed to remedy the following violations by the appropriate means:

1. Correct locations of failing tar that was installed on the surface of the AC stand and shingle roof. (Black tar is not meant to be exposed and will fail as this did). Correct water leak under AC stand. 2. Correct stand and AC unit that is out of level. 3. Correct drywall damage in master bedroom caused by water leak.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not contract Complainant regarding the work to be completed. After the deadline in the directive expired, Investigator Grimm was notified no corrective work had been performed. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22). Investigator Grimm testified as to the Registrar’s involvement in this matter. Complainant testified that prior to filing the complaint, she contacted the home warranty company who said they could not send anyone out because she had already exceeded the limit for the year. Complainant stated that Respondent did not contact her after the directive was issued. Jose Rascon, Owner,[1] testified that they were only able to respond directly to Complainant’s calls as they only performed work when they received work orders from the home warranty company. Mr. Rascon also noted that he had a car accident in Rocky Point, Mexico and did not receive the directive prior to the deadline expiring. Mr. Rascon was unclear as to when he was out of the country, but said he came back in early March. Administrative notice is taken of Respondent’s prior License record on June 13, 2019. Such prior License record reflects that Respondent’s License No. 315742 was first issued on November 15, 2017, and is active. Such prior License record also reflects that there were no other open complaints or resolved/settled complaints against Respondent’s license. 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[2] 4. Respondent’s argument that it could not perform any corrective work on the unit unless directed to do so by the home warranty company is unfounded. As a licensee, Respondent is required to correct any workmanship issues identified by the Registrar for a period of two years after the date of the last work performed on the project. Thus, the fact that the home warranty company did not direct Respondent to correct the issue is irrelevant to the matter to be determined. 5. The evidence established that Respondent did not attempt to compete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 315742 for a period of two days. 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(E). 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, June 13, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Mr. Rascon represented to the tribunal that he was the owner of Respondent. According to the Registrar’s website, Mr. Rascon was a former member of Respondent with a disassociation date of November 11, 2013. [2] 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.” 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.” [3] 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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