ALJDEC decisions subject to certification as final

2019A-02582-CHC-ROC · Registrar of Contractors · 2019-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 Marz Mechanical Heating, Cooling, & Plumbing LLC (Respondent) is the holder of License Nos. 299725 and 318870 issued by the Arizona Registrar of Contractors (Registrar). 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. 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. 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. 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. Respondent also replaced the drain pan, fixed the air handler, fixed the ceiling, and replaced the sheet rock. On or about May 17, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

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

All errors in original.

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. 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). Investigator Lawton testified as to the Registrar’s involvement in this matter. 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. Jacob Martinez, Owner[1] 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. 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. 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. 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. 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. 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 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 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 40 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

----------------------- [1] While Jacob Martinez testified that he was Owner of Respondent, the ROC website identified him as Member, Qualifying Party. [2] See https://roc.az.gov/contractor-search?Id=a0Yt000000ACXQHEA5 [3] 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.” [4] 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.”

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