ALJDEC decisions subject to certification as final

2018A-2685-CHC-ROC · Registrar of Contractors · 2019-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2018 and January 17, 2019. APPEARANCES: Complainant Brian G. Hawkins appeared on behalf of himself. Jeffery Hernandez, Esq. appeared on behalf of Respondent Anytime Media, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On September 11, 2018, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 25, 2018 by the Office of Administrative Hearings in Phoenix, Arizona.[1] 2. Respondent Anytime Media, LLC (“Anytime”) holds license number 278412 issued by the Registrar. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint. 4. Through the Citation, the Registrar alleges that Anytime 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, the Registrar may suspend or revoke Anytime’s license.[2] 5. In 2015, Complainant Brian G. Hawkins, M.D., entered into a contract with Anytime, wherein Anytime would install a Control 4 home automation system (“Control 4”) in his home. Under the contract, Dr. Hawkins agreed that Anytime Media was not responsible for any product that did not work. [3] 6. Anytime installed Control 4 in Dr. Hawkins’s home. 7. On or about June 13, 2018, Dr. Hawkins filed a complaint with the Registrar alleging abandonment, poor workmanship, and other deficiencies on the part of Anytime. 8. On or about June 21, 2018, Investigator Mark Gunstra conducted a job-site inspection. 9. Investigator Gunstra’s notes regarding the job-site inspection provide, in relevant part, as follows: Complaint Item 2: NO DOCUMENTATION PROVIDED FOR WORK DONE & WE HAVE NO CONTROL. WE HAVE NO CONTROL OVER THE AUTOMATION OR THE SYSTEM (CONTRACTOR IS IN CONTROL). SYSTEM IS MINIMALLY OPERATIONAL Investigator's Observation: The home has a security and home automation system that is controlled by Complainant's computer, phone or wall devices. In some cases he can control it on the computer but not on the wall device. I am not aware of a detailed specification I can reference as to where or how the system should be controlled. At this time I am only willing to have Respondent complete any contract work that is in writing but not done at this time. Governing Rule: N/A:

Complaint Item 3: DAMAGES DONE TO THE A/C CONTROLLERS Investigator's Observation: Complainant says that a control unit for the AC system was removed by Respondent. He says the AC system now does not work due to issues with dampeners. Respondent should diagnose the cause of this and repair. Governing Rule: Workmanship Rule:[4]

10. On or about May 18, 2018, Investigator Gunstra issued a Directive to Anytime. The May 18, 2018 Directive provides, in relevant part, as follows: You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 2: NO DOCUMENTATION PROVIDED FOR WORK DONE & WE HAVE NO CONTROL. WE HAVE NO CONTROL OVER THE AUTOMATION OF THE SYSTEM (CONTRACTOR IS IN CONTROL). SYSTEM IS MINIMALLY OPERATIONAL

Complaint Item 3: DAMAGES DONE TO THE A/C CONTROLLERS

Complaint Item 6: SOME SWITCHES DEFECTIVE AND HAD TO BE REPLACED

Complaint Item 9: ALARM SYSTEM MALFUNCTIONED AND STOPPED WORKING

Complaint Item 10: CAMERA SYSTEM NOT OPERATIONAL

Complaint Item 11: DOOR CAMERA/BELL NOT OPERATIONAL/WORKING

DIRECTIVE: Related to the above listed items; Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.

11. Through the Directive, the Registrar ordered Anytime to correct the items listed in the Directive no later than 5:00 p.m. on July 13, 2018. 12. On July 3, 2018, a representative for Respondent called Investigator Gunstra regarding the Directive. Investigator Gunstra advised the representative that he was not required to correct any item that was not a part of the contract or executed change orders. Investigator’s notes regarding the conversation provide, in relevant part, as follows: Respondent called and we discussed a few of the Directive Items and his responsibility. He specifically noted his contract does not include any work on the doorbell but that Item is on the Directive. I stated he should complete work per written contract or executed change orders (and verbal agreements). If any Items noted on the Directive do not fall within this he may choose not to address them. The ROC may evaluate this at the compliance Inspection.

13. The Directive was extended until July 16, 2018 because Respondent requested additional time to perform the work. 14. On August 3, 2019, Registrar Investigator Stephen Lawton conducted a compliance inspection. Investigator Lawton found that item 3 had not been corrected However, Investigator Lawton concluded that he could not determine whether Directive items number 6, 9, 10, and 11 were manufacturer issues. 15. Anytime filed a timely appeal to the Citation. 16. The mater was referred to the OAH for an evidentiary hearing. 17. A hearing was held on October 25, 2018 and January 17, 2019. 18. At hearing, Dr. Hawkins testified on behalf of himself and presented the testimony of Robert Price, Ken Muncy, Rhys Watters, and Michael Smith, Anytime Media presented the testimony of Wade Gaboriault, Steve Owens, and Jake Barnes. 19. Investigator Lawton testified regarding his review of the case and the compliance inspection. Investigator Lawton asserted that Anytime accepted the heating, ventilation, and air conditioning (“HVAC”) unit in the state that it was in. 20. Dr. Hawkins expressed that Anytime dismantled the zoning system and damaged the air conditioning system controllers. Dr. Hawkins contended that Anytime failed to properly install Control 4. 21. Robert Price is an HVAC contractor. Mr. Price opined that Dr. Hawkins HVAC system could not be integrated into the Control 4 system. Mr. Price observed the Control 4 system installed in Dr. Hawkins’s home. However, Mr. Price did not know whether the HVAC controllers were operational at the time that he was in Dr. Hawkins’s home. 22. Ken Muncy testified that he has 40 years of experience in commercial and residential HVAC service and repair. Mr. Muncy stated that he was a certified Trane dealer. Mr. Muncy opined that the Control 4 system would not work with the existing thermostats. Mr. Muncy saw the wiring in the HVAC control panel and the relays. Mr. Muncy did not perform any tests on Dr. Hawkins’s HVAC system. 23. Rhys Watters testified that he has 18 years of experience installing home automation systems. Mr. Watters visited Dr. Hawkins’s home and found that the touch screens were freezing and not responding. Mr. Watters explained that the touch screens were freezing due to a low bandwidth. Mr. Watters could not determine the cause of the low bandwidth. 24. Michael Smith has been an electrical contractor for 22 years. Mr. Smith first went to Dr. Hawkins’s home on or about September 15, 2017. Mr. Smith noticed that many items had been torn out and that there were transformers on the floor. However, Mr. Smith stated that there were several people who working on Dr. Hawkins’s home at the time, more than just Anytime Media. 25. Steve Owens is the qualifying party and founder of Western States Mechanical (“Western States”). Western States is a company that install and replaces HVAC systems. Mr. Owens became the qualifying party in April of 1996. Mr. Owens testified that he has 40 years of experience working with HVAC systems. Before he started Western States, Mr. Owens worked under the licenses of other entities. Mr. Owens taught a refrigeration school around 1991 to 1993. 26. In or around July of 2016, or 2017, Jake Barnes of Anytime Media contacted Mr. Owens and told him that there was a problem with an HVAC unit not cooling properly in all areas of the home. During Mr. Owens’s inspection of Dr. Hawkins home, Mr. Owens noticed that some of the dampeners in Dr. Hawkins’s home were automated. Mr. Owens explained that thermostats with sensors were needed to control the automated dampeners. Mr. Owens installed thermostats with sensors to control the automated dampeners. Mr. Owens noticed that some wires in the control panel of the air conditioning unit had been cut off. Mr. Owens installed a transformer and relays in the control panel of the HVAC so that the Control 4 system would properly connect with the HVAC control panel. Mr. Owens explained that the sensors control the air flow and the thermostat controls the temperatures. Mr. Owens asserted that he did not damage the controllers or dampeners. 27. Jake Barnes is a manager and programmer for Anytime Media. When

Installing the Control 4 system touch screens and thermostats, there was no need for Anytime Media to touch the HVAC control panel. Mr. Barnes installed the Control 4 system thermostats. Anytime Media did not touch the HVAC system or control panel. Anytime Media was not aware that there were automatic dampeners in the home of Dr. Hawkins at the time that the Control 4 system was initially installed. Mr. Barnes explained that Mr. Owens installed thermostats with sensors after Mr. Owens discovered that there were automatic dampeners in Dr. Hawkins’s home. 28. Wade Gaboriault is the owner of Anytime. Mr. Gaboriault asserted that the new control 4 system operates properly and that Anytime never had a reason to go into the air conditioning panel. Mr. Gaboriault believes that Dr. Hawkins wants a new AC unit installed. Mr. Gaboriault asserted that Dr. Hawkins told him that the AC unit was not working before he moved into the property. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1154(A). 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 a preponderance of the evidence. See A.A.C. R2-19-119. 3. 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). 4. The preponderance of the evidence does not show that Anytime Media damaged the air conditioning controllers. Although Dr. Hawkins asserted that Anytime Media employees dismantled his HVAC system and damaged his controllers, Dr. Hawkins did not provide any eye witness testimony or written evidence that an Anytime Media employee dismantled the HVAC system. The preponderance of the evidence showed that Anytime Media did not touch the HVAC control panel. Mr. Owens provided credible testimony that some of the wires in the control panel were disconnected when he first saw the panel. The preponderance of the evidence shows that Investigator Gunstra, Investigator Lawton, nor any of Dr. Hawkins’s witnesses tested Dr. Hawkins’s HVAC system. The evidence presented at the hearing was insufficient to establish that Anytime damaged the HVAC system controllers. 5. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of Ariz. Rev. Stat. sections 32- 1154(A)(3), namely, A.A.C. R4-9-108, and Ariz. Rev. Stat. section 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be 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, February 6, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing convened on October 25, 2018 and was set for a further hearing on January 17, 2019. [2] The Citation shows that Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing. [3] See Exhibit 1, pg. 53 of 120. [4] See Administrative Record, June 21, 2018 Jobsite Inspection Notes.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826