ALJDEC decisions subject to certification as final

2020A-02921-CHC-ROC · Registrar of Contractors · 2021-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dion Jake Richards,

COMPLAINANT

All Arizona Heating and Cooling LLC

License Number ROC 316499,

RESPONDENT

No. 2020A-02921-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2021

APPEARANCES: Complainant Dion Jake Richards appeared via Google Meet. Respondent All Arizona Heating and Cooling LLC was represented by Stephen M. Weeks, Esq. via Google Meet. Manuel Bermudez appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

All Arizona Heating and Cooling LLC (Respondent) is the holder of License No. 316499 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 26, 2020, Dion Jake Richards (Complainant) signed a contract with Respondent for installation of a new air conditioning system.

On or about June 16, 2020, the Registrar received a Complaint containing three items against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Manuel Bermudez. The original inspection was performed on July 15, 2020.

Investigator Bermudez then issued a written directive on or about July 16, 2020 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 August 21, 2020.

. . .

DIRECTIVE REQUIREMENTS

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

“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.”

Complaint Item 3: “...Freon leak...”

Investigator’s Observation: Verified: I observed what appeared to be an oily substance on the condenser and concrete slab the condenser is resting on.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

On September 8, 2020, Investigator Bermudez performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Bermudez noted that Respondent failed to comply with ensuring a building permit had been obtained.

The Registrar issued a Citation against Respondent on September 9, 2020, charging five 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(a) and (b), A.R.S. § 32-1154(A)(12) and A.R.S. § 32-1154(A)(22).

On September 22, 2020, Respondent filed its Citation Answer.

On October 28, 2020, the Registrar issued an Order Granting in Part and Denying in Part Request to Dismiss, whereby it dismissed Charge 2 (the workmanship charge) of the Citation, A.R.S. §32-1154(A)(3), namely R4-9-108(a).

A Notice of Hearing was issued on December 4, 2020, setting a hearing on January 12, 2021 at the Office of Administrative Hearings containing the four remaining alleged violations.

The hearing was held on January 12, 2021, and Complainant testified on his own behalf. Respondent presented the testimony of Charles Norris and offered twelve exhibits into evidence.

Investigator Bermudez testified as to his and the Registrar’s involvement in the case. Mr. Bermudez testified that it was the contractor’s responsibility to obtain a building permit in this matter, if the homeowner was not going to obtain the same.

Mr. Bermudez further testified that while he could not predict as to when the permit would be issued by the City of Tucson, he believed that the timeline provided to Respondent to comply with the Directive was sufficient, and noted that Respondent had not applied for the permit until August 28, 2021.

Mr. Bermudez acknowledged that the Charges 1, 2, and 4 were due to the lack of the building permit. As to Charge 3, the issue was that the contract did not include language informing consumers of a right to file with the Registrar of Contractors. Mr. Bermudez testified that the Respondent’s Exhibit 12 now contained the correct language acceptable to the Registrar.

Complainant testified that he was not aware a permit was needed and that the Respondent should have guided him on the issue. Complainant testified that there was no discussion about whose responsibility it was to obtain the permit. Further, Complainant testified that there was no language in the contract nor was any authorization given in the contract about the necessity of a permit.

In addition, Complainant testified that the permit issue still needs to be resolved prior to any further work on the air conditioning unit.

Respondent presented the testimony of Charles Norris who was the supervisor on the project. Mr. Norris testified that he was aware that it was the homeowner’s responsibility to obtain the proper permit, and that he informed Mr. Richards of the same at the time the contract was signed.

Mr. Norris also testified that once the Directive was issued, he applied for a permit during the first week of August, but mistakenly applied with Pima County and not the City of Tucson.

Mr. Norris testified that on August 28, 2020, after realizing his error, he applied for the permit with the City of Phoenix, but ultimately withdrew the request on September 4, 2020, once Complainant determined he did not want Respondent to resume any further corrective work.

Administrative notice is taken of Respondent’s prior License record on January 12, 2020. Such prior License record reflects that Respondent’s License No. 316499 was first issued on October 30, 2017, and is currently active. Such prior License record also reflects that there is 1 open complaint, namely the present complaint.

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).

As to Charge 3, Respondent admitted that the contract with Petitioner was not in compliance with A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The evidence established that a building permit was not obtained prior to the work commencing in early June. While it may ultimately be the homeowner’s responsibility to obtain a permit, it is the contractor’s responsibility to make sure work is not performed until the same is obtained. The tribunal does not find Mr. Norris’ testimony persuasive in regards to informing Complainant of the need for a permit at the outset. If for example, Mr. Richards refused to obtain the permit, then Respondent could not perform the work without being in violation of the Statutes. However, no evidence was presented that Mr. Richards refused. In fact, it does not follow that Mr. Richards would delay in obtaining the permit if he needed an air conditioning unit in June when the temperatures were well above 100 degrees. Further, even if Mr. Norris assumed that Mr. Richards obtained the permit, it would be difficult to justify Respondent’s possible exposure on its license without proof of the same. Therefore, Complainant established that Respondent disregarded the Tucson building code in violation of A.R.S. § 32-1154(A)(2)(b), and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, by failing to either obtain a building permit or to ensure that one had been obtained.

The evidence established that Respondent failed to ensure a permit was obtained 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License 316499 for a period of five days.

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

001

-137160-45720000Done this day, January 25, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000