ALJDEC decisions subject to certification as final

2020A-05631-CHC-ROC · Registrar of Contractors · 2021-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Benjamin Edward Smihula,

COMPLAINANT

David Clayton Armstrong

DBA: KMD Mechanical,

License No. ROC 156024,

RESPONDENT

No. 2020A-05631-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 3, 2021

APPEARANCES: Complainant Benjamin Edward Smihula appeared on his own behalf. Respondent David Clayton Armstrong, doing business as KMD Mechanical, did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

David Clayton Armstrong, doing business as KMD Mechanical (Respondent) is the holder of License No. 156024 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 15, 2019, Benjamin Edward Smihula (Complainant) entered into an agreement via text messages with Respondent for the installation of a 4 ton 16 SEER American Standard air conditioning unit for a total cost of $5,500.00 for the unit and $198.61 for a programmable thermostat.

Respondent did not obtain or ensure Complainant had obtained a permit for the project prior to the installation.

On or about March 21, 2019, following the installation, Complainant inspected the new unit and noted that the existing gas line was not connected to any unit and had been closed off. Complainant texted Respondent “we assume that means for some reason our gas heater was also changed in today’s process. This definitely was not in our plan.”

Respondent replied that he had installed a heatpump using Freon to heat. Complainant replied, “I never wanted to change my heater to a heat pump. We were very happy with our gas heat system. How do we change it so that we can use our gas heater again?” Respondent replied that he could “replace the airhandler with a gas furnace.” Respondent explained why the switch was made to ensure adequate airflow. After Complainant reiterated that the switch was “definitely not [his] understanding” of the contract and that he appreciated Respondent’s willingness to switch it back to a gas heater, Respondent stated that he would get it taken care of.

Respondent never followed through with the replacement.

On or about December 2, 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 Albert Bernal. After a jobsite inspection, Investigator Bernal issued a written directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 February 12th, 2021.

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.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Upon further inspection it was noticed that he changed my breakers in my electrical panel and now my wiring for my heater is not up to code

Investigator’s Observation: Respondent shall correct any deficiencies and obtain any necessary permits required by local building officials. Respondent shall provide proof of compliance by the expiration of this directive.

Governing Rule: A.R.S. § 32-1154 (A) 2 (b): Departure from or disregard of: (b) A building code...

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Bernal 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(A); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on May 3, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at his address and email address of record.

On or about April 16, 2021, the Office of Administrative Hearings issued an order by email advising the parties the hearing would be conducted by videoconference or telephone via Google Meet and providing the instructions to connect to the hearing.

The hearing was held by Google Meet on May 3, 2021. Complainant testified on his own behalf.

Respondent did not appear by videoconference or telephone and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear. Consequently, Respondent did not present any evidence to defend his license.

Investigator Bernal testified as to the Registrar’s involvement in the matter.

Complainant testified that he negotiated the contract with Respondent via text messages, but never intended that Respondent would remove the existing gas furnace.

Administrative notice is taken of Respondent’s prior License record on May 4, 2021. Such prior License record reflects that Respondent’s License No. 156024 was first issued on June 20, 2000, and was active. 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.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at his address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 Vazzano 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 Respondent performed work on the project without required permits having been issued by the Town of Gilbert. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision 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(A).

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).

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. 156024 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.

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-137160-45720000Done this day, May 4, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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