ALJDEC decisions subject to certification as final

2020A-01905-CHC-ROC · Registrar of Contractors · 2020-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ann Marie Izard

COMPLAINANT

Highland Home Services LLC

License No. 320101,

RESPONDENT

No. 2020A-01905-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2020

APPEARANCES: Complainant Ann Marie Izard appeared on her own behalf. Darren Hamilton, Owner, appeared on behalf of Respondent Highland Home Services, LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Highland Home Services LLC (Respondent) is the holder of License No. 320101 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 31, 2019, Ann Marie Izard (Complainant) entered into a contract with Respondent for the replacement of an air conditioning unit.

On or about April 15, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 29, 2020.

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

*LICENSE WAS PLACED ON INACTIVE STATUS 04/21/2020

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - 1. Installation of roof unit was poorly done. No permit from the City of Prescott Valley was issued and therefore no inspection was completed – there was gas and electrical hook ups performed; I found this out 4/15 from Dawn in the permitting office.

Investigator’s Observation: I contacted Dawn Mosher at the Town of Prescott Valley building department via email and she has confirmed that a permit and the subsequent inspections are required for an HVAC install. Mosher also relayed that a permit was not obtained for this installation

Governing Rule: ARS 32-1154.A.(2)

Compliance Item: 2 - Unit was installed in August 2019 and because it was making strange noises call Highland in Feb found out company is no longer in businesss, owner is out of state, and cannot/will not come to repair. Only after 3rd phone call to try to contact. Called another company to come look (AC Medic) and when he saw the horrible job done his estimate to correct the issues with the installation of the roof mounted gas pack unit is $3100 not including the roof repair (approx $900). Items identified by AC Medic are: New roof curb needed as incorrect one was installed; Correction/repair needed on gas lines; correction/repair needed electric conduit; return air duct is inadequate size for bigger unit installe, used old one at 16" ; original contractors roof curb is wrong and badly done will need roof repairs also. I am hopeful we can obtain the cost of this repair from original contractor.

Investigator’s Observation: The Town of Prescott Valley will need to inspect the unit for acceptance.

The complaint has to do with an unknown noise but the unit is otherwise functioning as intended.

The noise was not replicated at the inspection.

There is also evidence of staining from water intrusion on the trusses below the unit however I cannot determine how old the stains are.

There are no indications that the installation is leaking at this time.

Governing Rule: Comply with Prescott Valley Requirements

All errors in original.

Following the issuance of the written directive, Respondent did not correct the issues identified in the written directive. After the deadline in the directive expired, Investigator Dimond was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

On or about July 23, 2020, Mr. Hamilton submitted a written answer to the citation in which he requested that “the time be extended to respond as long as is possible” because he had not had sufficient time to respond because he had been quarantined and had tested positive for COVID-19.

Investigator Dimond testified that the City of Prescott Valley required a permit for a like for like exchange of an air conditioning unit. Investigator Dimond stated that Respondent failed to obtain a permit for Complainant’s project. Investigator Dimond indicated he was unable to replicate the noise Complainant identified in the complaint. Investigator Dimond also noted that he observed water stains, but he was unable to determine the age of the stains or if the unit was leaking at the time of the inspection.

Complainant testified as to the issues with the installation of the air conditioning unit. Ms. Izard indicated that the unit had issues since it was installed. Ms. Izard stated she did not have any contact from Respondent regarding the project even though she emailed Mr. Hamilton to see how he intended to comply with the directive.

Mr. Hamilton acknowledged that he failed to obtain a permit from the City of Prescott Valley for the installation of the air conditioning unit, but asserted it was a mere oversight. Mr. Hamilton stated that he knew he missed the deadline in the directive, but indicated he was still willing to obtain the permit. Mr. Hamilton stated that he contracted COVID-19, which caused additional complications in complying with the directive.

Administrative notice is taken of Respondent’s prior License record on October 11, 2020. Such prior License record reflects that Respondent’s License No. 320101 was first issued on May 31, 2018, and has been inactive since April 21, 2020. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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).

The evidence established that the work performed on Complainant’s project required a permit from the City of Prescott Valley and no such permit was obtained prior to the installation of the air conditioning unit. Therefore Complainant established that Respondent departed from or disregarded a building cod of a political subdivision of this state in violation of A.R.S. § 32-1154(A)(2)(b).

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.

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Mr. Hamilton reported contracting COVID-19, he did not reach out to the Registrar requesting an extension until 24 days after the deadline in the directive. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 320101 for a period of five.

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)(7), 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.

-54864001

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-137160-45720000Done this day, October 13, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000