ALJDEC decisions subject to certification as final

2019A-01393-CHC-ROC · Registrar of Contractors · 2019-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 6, 2019 APPEARANCES: Complainant Stacey B. Rivera appeared on behalf of herself. Juan Barrera appeared on behalf of Respondent J B C Mechanical, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent J B C Mechanical, LLC (JBC) holds license number 270770 issued by the Registrar of Contractors (ROC). 2. On or about November 9, 2018, Complainant Stacey B. Rivera and JBC entered into a residential construction contract wherein JBC would repair her roof and install a new 14-SEER heating, ventilation, and air conditioning unit (HVAC) in her home. 3. On or about November 10, 2018, JBC started work on Ms. Rivera’s home. 4. JBC installed a 14-SEER HVAC in Ms. Rivera’s home. 5. On or about December 8, 2018, JBC stopped work. 6. On or about March 20, 2019, the ROC received a complaint from Ms. Rivera alleging poor workmanship on the part of JBC. 7. On May 14, 2019, ROC Investigator Jack Grimm conducted a job site inspection. 8. On May 28, 2019, Investigator Grimm issued a Directive to JBC which provided, in relevant part, 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 June 14, 2019. .

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

1. Verify with documentation the HVAC unit installed is a 14 seer per contract.

2. Obtain City of Phoenix building permits for the installation of new duct work and HVAC unit installed on the home. Have all required inspections performed and approved by city building department. Document approvals. 9. In June of 2019, JBC submitted verification to Investigator Grimm that he had in fact installed a 14-SEER HVAC per contract. See Administrative Record. 10. On June 27, 2019, the City of Phoenix issued a permit to JBC for the installation of new duct work and the replacement of an HVAC. 11. On July 1, 2019, the ROC issued a Citation to JBC which contained allegations that JBC may have violated Ariz. Rev. Stat. sections 32-1154(A)(2), (A)(3) (A)(22), and A.A.C. Rule 4-9-108. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke JBC’s license.[1] 12. JBC filed a timely response to the Citation. 13. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 14. Investigator Grimm provided testimony regarding his investigation of the complaint and issuance of the Directive. Ms. Rivera testified on behalf of herself. Mr. Barrera testified on behalf of JBC. 15. Investigator Grimm explained that most of the complaint items were not substantiated because the work was performed by others. Investigator Grimm testified that the ROC received verification that a 14- SEER HVAC was installed in Ms. Rivera’s home. 16. Ms. Rivera contended that JBC performed poor work when it installed the 14-SEER HVAC. Ms. Rivera testified that JBC brought the other workers to her home. Ms. Rivera alleged that JBC verbally agreed to install a 16-SEER or 18-SEER HVAC, but installed a 14-SEER HVAC. Ms. Rivera stated that she signed the contract for the 14-SEER HVAC unit after it was installed. 17. Mr. Barrera testified that he never agreed to install a 16-SEER HVAC or 18-SEER HVAC. Mr. Barrera stated that Ms. Rivera chose to have a 14-SEER installed because it cost less than a 16-SEER HVAC. Additionally, Mr. Barrera stated that an 18-SEER air conditioning unit does not exist. 18. Mr. Barrera scheduled an inspection with the City of Phoenix for the 14-SEER. However, the inspector would not complete the inspection because there was a sign on Ms. Rivera’s property barring anyone from entering her property. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 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 shows that JBC had not obtained the permits and approvals from the City of Phoenix when it installed the 14-SEER HVAC, which is a violation A.R.S. § 32-1154(A)(2). 5. The preponderance of the evidence shows that JBC submitted verification that a 14-SEER HVAC was installed in June of 2019. The preponderance of the evidence shows that JBC received a permit from the City of Phoenix in June of 2019 for the installation of the duct work and the replacement of an HVAC. Mr. Barrera provided credible testimony that he scheduled an inspection with the City of Phoenix but the inspector would not conduct the inspection due to a posted sign which barred individuals from entering her property 6. The Directive was issued on May 28, 2019. There was insufficient evidence provided to establish that permits and inspections could have been obtained by the June 14, 2019 deadline. 7. The evidence presented at hearing shows that JBC installed a 14- SEER HVAC per contract, and that it obtained permits from the City of Phoenix for the installation. The evidence also shows that JBC scheduled an inspection with the City of Phoenix. Therefore, this Tribunal concludes that the record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. 32-1154(A)(22). 8. The preponderance of the evidence shows that JBC installed a 14- SEER and obtained the required permits for the installation of the duct work and 14-SEER. Therefore, it is not appropriate in this case to impose discipline or a civil penalty. 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, September 26, 2019. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Citation shows that the Registrar could not determine whether any violations had actually occurred, which is why the matter was set for hearing.

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