FINACT2019A-02582-CHC-ROC-FinalAgencyAction-6685.pdf

2019A-02582-CHC-ROC · Registrar of Contractors · 2019-12-16

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Todd James Cremeans, Case No. 2019-02582 COMPLAINANT, Docket No. 2019A-02582-CHC-ROC v. Marz Mechanical Heating, Cooling & Plumbing FINAL ADMINISTRATIVE LLC, DECISION AND ORDER License No. ROC 299725, 318870

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 January 20, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500 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 NOTES On page 4, line 27, replace “License Nos. 299725 and 318870 was first issued on July 1, 2015 and is active” with “License No. 299725 was first issued on July 1, 2015 and license no. 318870 was issued on March 27, 2018, and both licenses are active.” On page 6, line 13, replace “A.R.S. § 32-1101(A)(5)” with “A.R.S. § 32- 1101(A)(7).” Dated December 11, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail December 11, 2019 to:

Respondent Marz Mechanical Heating, Cooling & Plumbing LLC 22337 W Dove Valley Rd Wittmann, AZ 85361 Complainant Todd James Cremeans 4933 W Fallen Leaf Ln Glendale, AZ 85310

Copy sent electronically this same date to:

Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2019-02582 / DE

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 11.14.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Todd James Cremeans, No. 2019A-02582-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Marz Mechanical Heating, Cooling & Plumbing LLC, ROC License: ROC 299725, 318870, RESPONDENT

HEARING: October 25, 2019 APPEARANCES: Complainant Todd Cremeans appeared on his own behalf. Jacob Martinez, Owner, appeared on behalf of Respondent Marz Mechanical Heating, Cooling, & Plumbing LLC. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________

FINDINGS OF FACT

1. Marz Mechanical Heating, Cooling, & Plumbing LLC (Respondent) is the

holder of License Nos. 299725 and 318870 issued by the Arizona Registrar of Contractors (Registrar). 2. Prior to July 2017, Todd Cremeans (Complainant) contacted his home warranty company regarding his air conditioning unit. The home warranty company approved a new air conditioning unit. The home warranty company contracted with Respondent to install the unit for Complainant. 3. On or about July 27, 2017, Respondent installed the outside unit and air handling unit. During the installation, Respondent charged Complainant an additional $785.00 to modify the plumbing because the air handler unit the home warranty company ordered was too big. 4. On or about September 19, 2017, Complainant called Respondent regarding leakage from the air handler unit. Complainant sustained water leak damage from his upstairs closet down to his kitchen ceiling.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 11.14.2019 ROC LEGAL

5. On or about September 26, 2017, an employee of Respondent inspected the unit and discovered that the primary condensation line was clogged. The employee

unclogged the drain line and replaced the condensation and drain line switch.

6. Respondent also replaced the drain pan, fixed the air handler, fixed the

ceiling, and replaced the sheet rock.

7. On or about May 17, 2019, the Registrar received a Complaint against

Respondent from Complainant alleging poor work with respect to the project.

8. The Registrar assigned the complaint to Investigator Stephen Lawton

(Investigator Lawton). After a jobsite inspection, Investigator Lawton 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 23, 2019. You are hereby directed to remedy the following violations by the appropriate means: 1. Complaint Item 1: Ceiling damage on second and floor damage to carpeting and ceiling damage first floor inclusive of light fixture, due to leak at air handler. Investigator’s Observation: It was substantiated that there was indeed a leak at the air handler base on inspection and response from Respondent. Both parties agreed that it was due to a clogged condensate line. It seems to this Inv. that the lines should have been checked out during the installation of new air handler by the technician doing the installation. Respondent accepted the lines as working during the installation instead of checking clearance for drainage and that the system installed was working correctly. Substantiated. …. 2. Complaint Item 2: Final for HV/AC. Investigator’s Observation: It has been substantiated that the HV/AC has not been final from the local jurisdiction and permit has RECEIVED 11.14.2019 ROC LEGAL

expired at the time of inspection. Complete all corrective issues per the local jurisdiction to obtain final. ….. All errors in original.

9. Following the issuance of the written directive, Respondent filed an answer on or about September 9, 2019. Respondent indicated that it made many attempts to resolve this matter with Complainant but Complainant was unresponsive. Respondent took responsibility for the damages caused by the leak and offered services and options to remedy the situation. Respondent indicated that Complainant’s estimates went beyond the scope of fixing the damages. Respondent explained that the permit it obtained had expired due to Complainant’s non-responsiveness and length of time. Respondent indicated that Complainant was responsible for paying for a new permit as well as the items the city inspector wanted corrected. Respondent explained that the items the city inspector wanted corrected were not within the original scope of work. 10. On or about August 26, 2019, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4- 9-108; and A.R.S. § 32-1154(A)(22). 11. Investigator Lawton testified as to the Registrar’s involvement in this matter. 12. Complainant testified that water leaked, from the air handler unit, from the upstairs closet to the downstairs kitchen ceiling causing the kitchen ceiling to almost collapse. The leak caused extensive damages to the ceiling, drywall, and flooring. Even though Respondent fixed the condensate line, all back up issues, and the drain pan, Respondent declined responsibility for any secondary damages that resulted from the leak. Respondent told Complainant to contact his home warranty company for any secondary damage remedies.

RECEIVED 11.14.2019 ROC LEGAL

13. Jacob Martinez, Owner1 of Respondent, testified that the home warranty company determined that Complainant needed a new unit and the home warranty

company ordered the unit. When Respondent began to install the unit, it determined

that it was too big and needed to be modified. Mr. Martinez informed Complainant of

this and charged Complainant an additional $785.00 to modify the plumbing.

14. A few months later, when Mr. Martinez learned of the leak, he sent an

employee to fix the issues. The employee cleared the drain lines, replaced the rusted

drain pan, replaced the condensation and drain line switch, and installed a secondary

drain pan.

15. When Complainant requested that Respondent fix the secondary

damages of the wall, ceiling, and flooring, Mr. Martinez informed Complainant to file

another claim with the home warranty company. Complainant refused to file another

claim and asked Mr. Martinez if Respondent had insurance to fix the damages.

16. Additionally, Mr. Martinez obtained a permit, online, from the city of

Scottsdale after he installed the unit. Mr. Martinez stated that he did not hear anything

from Complainant until June 2019. When Investigator Lawton conducted his Jobsite inspection, the permit had already expired. It was Complainant’s responsibility to obtain a new permit for Respondent to do any work. 17. Regardless, Respondent fixed the ceiling below the air handler and replaced sheet rock that was damaged due to the leak. Mr. Martinez acknowledged that the leak was Respondent’s fault and that was why they fixed the damages. The estimates Complainant obtained for the secondary damage were also outside of the Respondent’s original scope of work. Any issues beyond that were secondary and not Respondent’s responsibility. 18. Administrative notice is taken of Respondent’s prior License record on October 25, 2019. Such prior License record reflects that Respondent’s License Nos. 299725 and 318870 was first issued on July 1, 2015, and is active. Such prior License

While Jacob Martinez testified that he was Owner of Respondent, the ROC website identified him as Member, Qualifying Party. RECEIVED 11.14.2019 ROC LEGAL

record also reflects that there were no other open complaints or resolved/settled complaints against Respondent’s license.2

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’s work was not in conformity

with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108.3 4. Respondent’s argument that it could not perform any corrective work, that resulted from the leak, unless Complainant filed another claim with the home warranty company is unfounded. As a licensee, Respondent is required to correct any workmanship issues identified by the Registrar for a period of two years after the date of the last work performed on the project. Respondent corrected some but not all of the damage caused by the leak. Respondent is responsible for any permits or repair resulting from Respondent’s improper installation. 5. The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXQHEA5 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.” 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.” RECEIVED 11.14.2019 ROC LEGAL

established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).4

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Order, the Registrar shall suspend Respondent’s License Nos. 299725 and 318870 for

a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum

of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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 any outstanding prior civil penalty. 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 days from the date of that certification. Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, November 8, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

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.” RECEIVED 11.14.2019 ROC LEGAL