ALJDEC decisions subject to certification as final

2018A-2656-ROC · Registrar of Contractors · 2019-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2019 APPEARANCES: Complainant Jose Fuentes appeared on his own behalf. Respondent Miguel Angel Flores doing business as Flores Air Conditioning and Heating was represented by David Turnbull. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Miguel Angel Flores doing business as Flores Air Conditioning and Heating (Respondent) is the holder of License No. 198122 issued by the Arizona Registrar of Contractors (Registrar). On or about May 27, 2016, Jose Fuentes (Complainant) entered into a contract with Respondent for the installation of a new heatpump. On or about June 11, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. Specifically, Complainant stated that Respondent disconnected the wiring for the swimming pool pump and connected the wiring for the new heat pump in its place. Complainant asserted that Respondent said it would come back out to reconnect the swimming pool pump. Complainant also alleged that Respondent took his dolly to haul the old unit to the truck and did not return it. The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Lisa Melton 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 August 17, 2018.

You are hereby directed to remedy the following violations by the appropriate means:

1. A permit was required for the work performed, however, Respondent did not ensure that permit was in place nor did they obtain a permit. Respondent is directed to obtain relative permit(s) and comply with any and all inspections or corrections as mandated by the City of Phoenix.

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

According to her notes from the jobsite inspection and her testimony, Investigator Melton was unable to determine that disconnecting the swimming pool pump was not done with the knowledge and approval of Complainant. Investigator Melton was also unable to make any determination of poor workmanship regarding the allegedly taken dolly. Following the issuance of the written directive, Respondent attempted to contact Complainant to obtain information necessary to obtain the permit; Complainant would not respond or allow Respondent access to the home. Based on Respondent’s representation that it was in the process of obtaining a permit, Investigator Melton extended the deadline to August 24, 2018. After the deadline in the directive expired, Investigator Melton was notified the permit had not been acquired. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22). Investigator Melton testified that it was ultimately the homeowner’s responsibility to obtain a permit, but that a contractor should not perform work if a permit had not been obtained. Investigator Melton also indicated that Respondent disagreed with the need for a permit on this project, but were willing to obtain one as directed. Investigator Melton also stated that Respondent had informed her it had tried to obtain a permit, but Complainant had denied it access to the property. Jorge Flores, installer with Respondent, testified that while working on the project, Complainant indicated the swimming pool had been abandoned and suggested that Respondent use the breaker dedicated to the swimming pool pump to wire the new heatpump. Mr. Flores stated that Complainant was informed that if he changed his mind about using the pool in the future, Respondent could refer a licensed electrician to perform the work necessary to reconnect the wiring. Miguel Flores, Respondent’s Owner and Qualifying Party, testified that Respondent needed to measure the house to get calculations necessary to obtain the permit, but Complainant would not provide Respondent access to the property to collect the necessary information. Mr. Flores stated that he attempted to contact Complainant after the issuance of the directive, but Complainant would not respond to allow access to the property. Complainant denied that he agreed to have Respondent disconnect the swimming pool pump permanently. Complainant also testified that, because Respondent stole his dolly, he was unwilling to let Respondent come back to the property for any purpose. Administrative notice is taken of Respondent’s prior License record on January 28, 2019. Such prior License record reflects that Respondent’s License No. 198122 was first issued on July 28, 2004, and was voluntarily cancelled. Such prior License record also reflects that there was one open complaint and no prior 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 failed to obtain a permit or ensure a permit had been obtained prior to performing the work on the project. Therefore, Complainant established that Respondent departed from or disregarded the applicable building codes in violation of A.R.S. § 32-1154(A)(2).[1] 4. The evidence failed to establish that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant failed to establish that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[2] 5. The evidence established that Respondent attempted to compete the corrective work following the directive being issued, but Complainant refused to allow Respondent access to the property to obtain the necessary information. While Respondent failed to take appropriate corrective action following a written directive from the Registrar, Respondent had valid justification for doing so given Complainant’s denial of access. Therefore, Complainant failed to establish a violation of A.R.S. § 32-1154(A)(22).[3] RECOMMENDED ORDER It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Jose Fuentes’ complaint in Case No. 2018-2656 against Respondent Miguel Angel Flores doing business as Flores Air Conditioning and Heating’s License No. 198122 based on Complainant’s failure to provide Respondent access to comply with the written directive. 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, January 28, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture 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.” [2] 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.” 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.” [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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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826