ALJDEC decisions subject to certification as final

2018A-3969-ROC · Registrar of Contractors · 2019-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 6, 2018, 1:00 P.M. APPEARANCES: Complainant Robbin Brigham appeared on her own behalf; Steven Fierros, Owner, appeared on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. SOS Mechanical HVAC, LLC (Respondent), is the holder of License Number 315986 issued by the Registrar of Contractors (Registrar). 2. On or about August 24, 2018, Robbin Brigham (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work in connection with HVAC repair by Respondent at a residence in Apache Junction, Arizona (“project”). 3. The Registrar performed an inspection of the project on September 24, 2018. Thereafter, the Registrar issued a Directive, dated September 25, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 11, 2018, as follows: Complaint Item 1: Replacement on electrical box missing material to coat wiring. Complaint Item 4: Drip pan filled with junk/screws clogged drain line-no replacement recommended. Complaint Item 5: Drain lines clogged with debris from removing old and replacement of coil. Complaint Item 7: Flue to furnace loose – not back on nor screwed back. Complaint Item 8: Second drip pan not secured after coil replaced – resting on 2 x 4. Complaint Item 10: Vents with insulation/debris/oil? Hanging from ceiling from attic work. Complaint Item 11: Vents upstairs blow almost no air now. Complaint Item 13: Suction copper line isn’t insulated/cut open and exposed. Complaint Item 14: Gaps in equipment leaking air in attic. Complaint Item 15: Junk left in attic not disposed of properly. Complaint Item 16: Work not completed or up to code. 4. The Registrar conducted a compliance inspection on October 18, 2018, and verified that no corrective action was taken. At the inspection, the parties agreed that Complainant would secure three bids from other HVAC contractors to repair the Directive items and that Respondent would select one of the bids and pay Complainant to have the work performed. 5. After the Registrar was informed that Complainant had obtained three bids but that Respondent had not paid Complainant to have the work performed, the Registrar then issued a Citation to Respondent, dated October 22, 2018, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing after a continuance for February 6, 2019, at 1:00 P.M. 7. At the February 6, 2019, hearing, Complainant Robbin Brigham testified on her own behalf and presented the testimony of Tristan Stewart and Eric Spencer. Respondent presented the testimony of Steven Fierros, Owner. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 14 and Respondent’s exhibit numbers 1 - 2.[1] 8. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspection of the project, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that no corrective work was performed and that Respondent had agreed to pay for one of the bids received by Complainant to complete the work. 9. Complainant Robbin Brigham testified, as it related to the Directive items in question, that Respondent was assigned to her because she had made a claim on her One Guard home warranty. She testified as to her various dealings with Respondent and the problems with the work. She further stated she obtained three bids to complete the Directive but that Respondent did not pay for any as agreed to. (Complainant’s Exhibit 12). 10. Eric Spencer, an independent HVAC contractor, testified on behalf of Complainant that he submitted a bid from Honest Air Care and Home Services. (Complainant’s Exhibit 12A). He further testified that he was given the Directive by Complainant from which he submitted the bid. 11. Tristan Stewart, an HVAC technician, testified on behalf of Complainant as to the HVAC leaking he observed in the attic. He stated he was present when Complainant provided the Directive to contractors and received the bids. 12. Steven Fierros, Owner of Respondent, testified on behalf of Respondent that he agreed to pay for one of the bids obtained by Complainant but that he believed the scope of the work in the bids exceeded the scope of the Directive items. He further testified as to his work on the HVAC system. 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) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

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.

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.….

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9- 108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. A.R.S. § 32-1154(A)(2). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) due to the departure from or disregard of plans or specifications or of any building codes. Complainant established that Complaint items 1 and 7 did not comply with applicable building codes. 7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Complainant established that Complaint items 4, 5, 8, 10, 11, 13, 14, 15, and 16 did not comply with minimum workmanship standards. 8. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. There was no dispute that Respondent did not perform corrective action and that Respondent did not pay to have the corrective work performed. Respondent provided no valid justification for not proceeding with the corrective work. Respondent did not present sufficient evidence to show that the bids obtained by Complainant to complete the Directive items were excessive in scope or cost. 9. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), 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, SOS Mechanical HVAC, LLC’s, License Number 315986 is suspended for two days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 the outstanding prior civil penalty. 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, February 26, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s submissions to the Arizona Office of Administrative Hearings.

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