ALJDEC decisions subject to certification as final

2020A-04667-CHC-ROC · Registrar of Contractors · 2021-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Drake,

COMPLAINANT

Air Conditioning Maintenance Co,

License No. ROC 111230,

RESPONDENT

No. 2020A-04667-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2021

APPEARANCES: Complainant David Drake appeared via Google Meet. Dustin Rogers appeared via Google Meet on behalf of Respondent, Air Conditioning Maintenance Co. Arlo Houston, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Air Conditioning Maintenance Co. (Respondent) is the holder of License No. 111230 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 16, 2019, David Drake (Complainant) signed a contract with Respondent for installation of an HVAC system at his residence.

On or about September 30, 2020, the Registrar received a Complaint containing seventy items against Respondent from Complainant alleging poor work with respect to the installation of the system.

The Registrar assigned the complaint to Investigator Arlo Houston. The jobsite inspection was performed on October 27, 2020.

Investigator Houston then issued a written directive on or about October 29, 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 December 7, 2020.

. . .

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

Compliance Item: 5 - "Contractor never covered the lines from the cassettes inside the house."

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that no interior line set covers were installed. Complainant said several options had been presented for interior line set covers but that the options had not matched the texture and/or color of the air handlers and he had declined installation of those presented options. Respondent said several options had been presented to complainant for interior line set covers and the complainant had not accepted them. The proposal does not specify a color and/or texture of interior line set covers.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - "Contractor did not cover the lines outside the house."

Investigator’s Observation: Verified. Upon inspection at this JSI I observed that exterior line set and power run covers were not installed on the sides of the house. Complainant said that a sheet metal cover had been installed without his approval and that he had respondent uninstall it. The proposal does not specify material type, color, and/or texture of exterior line set covers.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 11 - "Contractor damaged furniture placing a cassette on it."

Investigator’s Observation: Verified. Upon inspection at this JSI complainant showed me a scratch on the top of a buffet cabinet and said it was caused by respondent's work. Respondent said the scratch on the buffet cabinet was caused by his employee.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in original)

On December 10, 2020, Investigator Houston performed a Compliance Jobsite Inspection. In his Notes regarding the same, Investigator Houston found that Items 5 and 6 items were still not in compliance, but that the parties hand entered into a monetary settlement for Item 11.

On December 18, 2020, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(12), namely and A.R.S. § 32-1158, 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 January 3, 2021, Respondent submitted an Answer to the Registrar.

On or about February 22, 2021, a Notice of Hearing was issued setting a hearing on March 25, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Houston testified as to his involvement and the above timeline.

Investigator Houston testified that the contract the parties had entered into did not contain the “right to file” language per the statute.

Investigator Houston also noted that at the prehearing inspection the lines in Items 5 and 6 were still not covered.

Complainant testified on his own behalf and stated that he was frustrated that Respondent had made so many mistakes and that the system was not even working.

In regards to the inside line covers, Complainant testified that the covers that were provided were the wrong color and texture so he did not want them installed.

As to the outside covers, Complainant testified that the parties agreed to use corrugated pipe, but that Respondent did not show up at the jobsite with the correct materials so he had them remove the sheet metal covering.

Complainant testified that he never denied Respondent access to the property, he only denied Respondent to place the non-agreed upon materials on the lines.

Mr. Rogers testified on behalf of Respondent. He acknowledged that there were some mistakes on the job due to miscommunication.

Mr. Rogers also acknowledged the error in Respondent’s contract and has since changed its contracts to comply with the statute.

As to the inside line covers, Mr. Rogers testified brought three to four different options for Complainant to choose from, but Complainant said “no” to all of them and to “keep trying” for an exact match. Mr. Rogers testified that there is no line cover that exactly matches the system.

As to the outside line covers, Mr. Rogers testified that he would try to find the corrugate pipe in the correct size, but when he could not, Complainant refused other options. Mr. Rogers testified that he used the sheet metal to prevent the wires from being damaged due to weather exposure, but that Complainant demanded that they be removed.

Finally, Mr. Rogers testified that he believed that he did everything to fully complete the contract.

Administrative notice is taken of Respondent’s prior License record on April 6, 2021. Such prior License record reflects that Respondent’s License No. 111230 was first issued on February 5, 1996, and 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).

The evidence established that while the contract failed to contain the “right to file” language, Respondent has corrected this issue in future contracts. Therefore, while there is a violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, Respondent’s contracts are now in compliance.

The evidence established that Respondent’s work in not initially placing the line covers in the inside and outside 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 Registrar of Contractors allows contractors the opportunity to perform corrective work within a reasonable time. Respondent established by a preponderance of the evidence that there was no exact match for the inside line cover and provided more than enough options for Complainant, however, Complainant refused at every turn, and provided no evidence that the covers he wanted actually existed. As to the outside line covers, again Mr. Rogers attempted to provide Complainant with his request for the corrugated pipe, but again Complainant provided, no evidence that the correct size existed. Further, Mr. Rogers installed the sheet metal covers to protect the lines from damage, yet Complainant appeared to be more concerned with appearances than protection of the wires, and demanded their removal. Mr. Rogers was doing its best to prevent damage from happening and used the same materials that he would have under ordinary circumstances. Therefore, the Administrative Law Judge finds that Respondent cannot properly be disciplined for the violation of A.R.S. § 32-1154(A)(22), as Complainant frustrated Respondent’s attempts to fully complete the contract and the Written Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar close as dismissed, Complainant’s complaint in Case No. 202A-04667 against Respondent Air Conditioning Maintenance Co.’s License No. 111230.

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 30 days from the date of that certification.

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-137160-45720000Done this day, April 6, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000