FINACT2019A-02226-CHC-ROC.pdf

2019A-02226-CHC-ROC · Registrar of Contractors · 2020-02-21

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Alison Sheila Mcilroy , Case No. 2019-02226 COMPLAINANT, Docket No. 2019A-02226-CHC-ROC v. Absolute Air Authority LLC FINAL ADMINISTRATIVE License No. ROC 287444, 294390 DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law.

REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on March 31, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

FINAL NOTE On page 8, line 4 replace “32-1155(D)” with “32-1155(D) (formerly at section 32-1155(C))”.

Dated February 20, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Legal Department Arizona Registrar of Contractors

Copy mailed via USPS First Class mail February 20, 2020 to: Respondent Absolute Air Authority LLC 5609 E Dixileta Dr Cave Creek, AZ 85331 Complainant

Alison Sheila Mcilroy 7354 E Baker Drive Scottsdale, AZ 85266

Copy sent electronically this same date to:

Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Case No. 2019-02226 / MB

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 2.4.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alison Sheila Mcilroy, No. 2019A-02226-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Absolute Air Authority LLC, DECISION License No. ROC 287444, 294390, RESPONDENT

HEARING: November 20, 2019 and January 15, 2020

APPEARANCES: Alison Sheila Mcilroy on her own behalf; Clinton John Harris for

Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

1. On August 6, 2019, the Registrar of Contractors (“ROC”) issued a Notice

of Hearing setting the above-captioned matter for hearing on September 20, 2019 at the

Office of Administrative Hearing. The matter was continued and the hearing was

conducted on November 20, 2019 and January 15, 2020.

2. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint.

3. Respondent Absolute Air Authority LLC, holds license numbers 287444

and 294390 issued by ROC. Clinton John Harris is Absolute Air Authority’s qualifying party. 4. Complainant Alison Sheila Mcilroy and Absolute Air Authority entered a contract or contracts under which Respondent installed three air conditioning/gas furnace units at Ms. Mcilroy’s house. Two of the units were installed in July 2018 and the third in January 2019. 5. On April 30, 2019, ROC received from Ms. Mcilroy a complaint against Absolute Air Authority. 6. ROC assigned Investigator David Fagerburg to Ms. Mcilroy’s complaint. 7. Mr. Fagerburg conducted a jobsite inspection on May 24, 2019. RECEIVED 2.4.2020 ROC LEGAL

8. On June 14, 2019, ROC issued to Absolute Air Authority a Directive that provided in part: You are hereby directed to remedy the following violations by the appropriate means: The respondent is to install units per contract specifications and is to comply with manufacturer[’]s specifications and warranties. Complaint Item 3: Re-used plenums from old unit instead of buying new as quoted. ALL UNITS do not fit on old plenums Complaint Item 4: Scaled plenums are leaking & no access to coil panel door for service b/c sealed shut with Pookie Complaint Item 5: Due to units being uneven, units shut off and restart themselves because of water leaking. Complaint Item 6: Lag bolts incorrectly positioned making all units, cracked, uneven & stressed where attached. Complaint Item 7: Clint caused break in pipes of Master & Main units-both units to have new refrigerant recharged Complaint Item 8: Incorrect Master & Bedroom unit coils used for Unit. Sold 16 seer but running at 14 seers. Cut corner Complaint Item 9: Master Unit hanging system bent & installed incorrectly. Danger of falling through ceiling. Complaint Item 10: Main Unit hanging system bent & installed incorrectly. Danger of falling through ceiling Complaint Item 11: Bedroom Unit hanging system bent & installed incorrectly. Danger of falling through ceiling. Complaint Item 12: Freon Leaking from Master Unit. Main & 3rd Unit are low on freon and need to be recharged. Complaint Item 13: Electrical box loose on side of house of 3rd unit. Panel door not replaced properly-screws missing Complaint Item 14: Duct work Master & Office w/2nd unit not outputting enough cold air, constantly runs-duct not sealed Complaint Item 15: Duct work in Master not connected properly, visible hole & leaking cold air in to the attic Complaint Item 16: Duct work not tied in to the unit properly – leaking air from Bedroom Unit in to the attic as well Complaint Item 18: Living room unit wasn’t centered on pad, a ¼ of the unit hung off. Fixed but still not centered

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Complaint Item 19: Duct work removed for 3rd unit then additional $750 paid to fix Still does not cool house properly Complaint Item 20: Holes in flue pipe & flue not installed correctly on all 3 units – CO leaks when furnace running. In addition to the above items, you are also hereby directed to comply with the City of Scottsdale Inspection Report on the following page. 9. The City of Scottsdale Inspection Report included as part of ROC’s Directive is dated May 1, 2019, and is in evidence as part of Respondent’s Exhibit 20. Scottsdale’s Inspection Report required Respondent to make corrections and repairs and to have the work re-inspected. 10. ROC’s Directive shows that ROC had determined that any other workmanship violations alleged in Ms. Mcilroy’s complaint were unsubstantiated. 11. The Directive required Absolute Air Authority to provide ROC with satisfactory written proof of compliance prior to 5:00 p.m. July 2, 2019. 12. Mr. Harris testified to the effect that Ms. Mcilroy had scheduled the City of Scottsdale re-inspection for a date prior to July 2, 2019, which meant that Respondent had to complete the repairs ROC ordered it to complete in less than fifteen days. 13. Mr. Harris performed work at the house on several days; on June 25, 2019, he informed Ms. Mcilroy’s father Alan Mcilroy that he had completed the work and that the Mcilroys should schedule the required inspections. 14. On June 26, 2019, Scottsdale re-inspected Respondent’s work and issued a “red tag” showing that the deficient work had not been properly corrected. 15. Because Respondent’s work did not pass the City of Scottsdale re- inspection, ROC did not conduct a compliance jobsite inspection. 16. On July 5, 2019, ROC issued to Respondent a Citation through which it alleged that Absolute Air Authority may have violated ARIZ. REV. STAT. sections 32- 1154(A)(3) and (A)(22). 17. Prior to the hearing date, Ms. Mcilroy had the units installed by Respondent removed and replaced by another contractor. 3 RECEIVED 2.4.2020 ROC LEGAL

18. At the hearing, Mr. Fagerburg provided credible testimony to the effect that the complaint items set out in ROC’s Directive are violations of the workmanship standards. Mr. Fagerburg’s jobsite inspection notes, which are in ROC’s administrative record, provide more information about his findings. 19. At the hearing, Ms. Mcilroy presented the testimony of Matt Roppelt, the City of Scottsdale inspector who conducted the inspection and re-inspection of Absolute Air Authority’s work. 20. Mr. Roppelt confirmed that Respondent’s work did not meet the City’s code requirements at either inspection. When asked why the “red tag” for the re- inspection included items that were not listed on the initial Inspection Report, he explained that the City’s policy during an inspection is to stop listing items after one sheet is filled, which is what happened at the May 1, 2019 inspection (i.e., he did not list all the deficiencies on the initial Inspection Report). 21. Mr. Roppelt’s opinion was that prior to the re-inspection, the only item that Respondent had fixed was to replace a switch plate. 22. At the hearing, Ms. Mcilroy presented the testimony of Charmagne C. Moran, P.E., the owner of AKRIBIS Engineering LLC. 23. Ms. Mcilroy hired AKRIBIS to evaluate Respondent’s work; Ms. Moran conducted an inspection on May 21, 2019, and was present during Mr. Fagerburg’s jobsite inspection and the City of Scottsdale’s June 26, 2019 re-inspection. 24. Ms. Moran provided credible testimony to the effect that Respondent’s work did not meet the applicable codes and was deficient in numerous regards, many of which were also identified by Mr. Fagerburg and Mr. Roppelt. 25. Ms. Moran’s Report provides the details of her findings and is in evidence as Complainant Exhibit 16. Among the deficiencies Ms. Moran noted were: air handling units not level; drain pans level; flue not properly sealed; ducts not properly sealed; leaking refrigerant; and a failure to use the access port for installation of gas lines. 26. Ms. Moran’s opinion was that considering the nature and number of deficiencies, all three units required replacement.

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27. In April 2019, after Respondent had installed the third unit at Ms. Mcilroy’s house and had conducted service work on the units, Ms. Mcilroy allowed other contractors to inspect the units. Among these contractors were Mears Air Conditioning and Htg (ROC #042742) and Steve Ferguson Heating and Cooling LLC (ROC #257574). 28. Respondent’s Exhibit 10 is an inspection report prepared by Mears in which it identified many of the deficiencies identified by ROC, Mr. Roppelt, and Ms. Moran. 29. Respondent’s Exhibit 11 is an inspection report prepared by Steve Ferguson Heating and Cooling LLC in which it also identified many of the deficiencies identified by ROC, Mr. Roppelt, and Ms. Moran. Ferguson recommended that all three units and the duct work be removed and replaced. 30. On or about May 7, 2019, Parker & Sons (ROC #233298, #152656, #152654, and #300696) conducted an inspection of Respondent’s work and prepared an invoice summarizing its findings. Parker & Sons found many of the same deficiencies identified by ROC, Mr. Roppelt, and Ms. Moran. Respondent Exhibit 15. 31. On or about May 16, 2019, Ms. Mcilroy allowed King Insulation of Arizona LLC to access areas in which Respondent had worked for the purpose of providing a bid to add insulation to the attic space. 32. On or about July 13, 2019, Ms. Mcilroy paid Honest Air Care and Home Services (ROC #310928) to add refrigerant to two of the units Respondent had installed. 33. Through a letter dated July 18, 2019, Ms. Mcilroy informed Absolute Air Authority that she intended to have the three units and duct work removed from her house and that Mr. Harris should make an appointment to pick-up the material or he would forfeit any ownership. 34. On or about August 1, 2019, Honest Air Care and Home Services removed and replaced the three units and associated duct work. 35. Absolute Air Authority takes the position that it was not appropriate for ROC to issue to Respondent a citation based on ARIZ. REV. STAT. section 32-1155(C)(2) 5 RECEIVED 2.4.2020 ROC LEGAL

because Ms. Mcilroy allowed other contractors and the City of Scottsdale access to Respondent’s work. 36. Absolute Air Authority argues that the items listed Scottsdale’s May 1, 2019 Inspection Notice and included in ROC’s Directive were not included in Ms. Mcilroy’s complaint and are therefore not properly at issue in this matter. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41- 1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).

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7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. 9. ROC may not issue to a contractor a citation alleging a “failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if …. 2. The contractor's work has been subject to neglect, modification or abnormal use.” ARIZ. REV. STAT. § 32- 1155(D)(formerly at section 32-1155(C)). 10. ARIZ. REV. STAT. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 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….

11. ARIZ. ADMIN. CODE section R4-9-108 provides that “A contractor shall perform all work in a professional and workmanlike manner [and a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.” 12. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 13. Messrs. Fagerburg and Roppelt and Ms. Moran provided credible testimony showing that Absolute Air Authority’s work was deficient and did not meet the workmanship standards or the applicable codes. In addition, documentary evidence from three licensed contractors also shows that Respondent’s work was deficient. 7 RECEIVED 2.4.2020 ROC LEGAL

14. Although Ms. Mcilroy did allow several contractors access to inspect Respondent’s work before she filed with ROC her complaint, there is no substantial evidence showing that these contractors modified Respondent’s work. Consequently, ARIZ. REV. STAT. section 32-1155(D) is not applicable and did not bar ROC from issuing the Citation. 15. The preponderance of the evidence shows that Absolute Air Authority violated ARIZ. ADMIN. CODE section R4-19-108 by failing to perform its work in a professional manner, which is also a violation of ARIZ. REV. STAT. section 32-1154(A)(3). 16. The preponderance of the evidence shows that Absolute Air Authority violated ARIZ. REV. STAT. section 32-1154(A)(22) by failing to comply with the Directive because Absolute Air Authority did not properly complete the work ROC ordered it to complete within the time set out in ROC’s Directive. 17. Mr. Harris argues that Respondent was not afforded the full fifteen days as required by statute because Ms. Mcilroy had scheduled Scottsdale’s re-inspection for a date prior to July 2, 2019. Because Mr. Harris informed Mr. Mcilroy that the work had been properly completed on June 25, 2019, which was before ROC’s deadline expired, Ms. Mcilroy’s scheduling does not provide a valid justification for Absolute Air Authority’s failure to comply with the Directive. 18. Because Absolute Air Authority has violated ARIZ. REV. STAT. sections 32- 1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty. 19. Considering the facts and circumstances of this matter, Absolute Air Authority’s licenses should be suspended for seven days and a civil penalty of $250.00 should be assessed against it. RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the final Order in this matter Absolute Air Authority LLC’s license numbers 287444 and 294390 be suspended for seven days; IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against Absolute Air Authority LLC a civil penalty of $250.00. 8 RECEIVED 2.4.2020 ROC LEGAL

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 4, 2020.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

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