ALJDEC decisions subject to certification as final

2021A-00426-CHC-ROC · Registrar of Contractors · 2021-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martin Eduardo Lerma,

COMPLAINANT

Absolute Air Authority LLC,

License No. ROC 294390,

RESPONDENT

No. 2021A-00426-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 2, 2021

APPEARANCES: Complainant Martin Eduardo Lerma appeared on his own behalf. Clint Harris, CEO and Qualifying Party, appeared on behalf of Respondent Absolute Air Authority LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Absolute Air Authority LLC (Respondent) is the holder of License No. 294390 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 1, 2020, Martin Eduardo Lerma (Complainant) entered into a contract with Respondent for, among other things, the construction of a steam room in his new home, at a cost of $6,800.00.

On or about December 28, 2020, Respondent issued Complainant an invoice detailing the work to be performed as follows:

Demo existing platform, soffit, and knee wall to accommodate new piping and venting for water heater and steam generator. Rebuild to like condition of original existing.

Install new refrigerant lines and low voltage wiring to accommodate condenser relocation.

Run new 50 amp circuit for air conditioner.

Install new supply and return ducting and furnace inlet and outlet, connected to existing trunk link and intake grill.

Relocate supply vent in laundry room from ceiling to sidewall.

Restore walls of mechanical room to existing.

Relocate furnace and water heater, approximately 8 feet south.

Run new 3/4” copper drain line and extend soft water loop.

Replace furnace and evaporator coil.

Install 9kw self flushing steam generator for steam room adjacent laundry.

The invoice indicated the total cost of the project was $15,700.00.

On or about January 31, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. After a jobsite inspection, Investigator Melton 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 March 29, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item 1: Plumbing and electricity were not done correctly. I had the work checked by licensed plumber and electrician, and they said it was unsafe for the home and should be corrected immediately.

Investigator’s Observation: Respondent did not appear for inspection and did not provide permits as requested in jobsite inspection notice. City of Phoenix building permit website shows no open or recent permits for the jobsite. Complainant stated that Respondent relocated portions of the mechanical system (equipment/duct), water heater was relocated and replaced, steam room equipment was partially installed along with associated piping. A trench across the floor of the existing laundry room has been opened and filled. This work, and possibly more, requires permits/inspections. The work is not complete. Respondent should complete the work of the contract by appropriate methods and comply with all requirements for permitting/inspection required by the local building authority.

. . . .

Compliance Item 2: The overall construction of the steam room is very poor and was left incomplete

Investigator’s Observation: Work is not complete. Respondent should complete the work of the contract by appropriate methods and comply with all requirements for permitting/inspection required by the local building authority.

. . . .

Compliance Item 3: Holes were left on the floor, walls and a complete dirty mess was left inside and outside the home

Investigator’s Observation: At the time of the inspection there were open walls (missing drywall and/or patch). A trench across the floor of the existing laundry room has been opened/filled but flooring has not been repaired. Construction debris has been left on the jobsite. Area at front hose bib (located on patio) is covered in debris which appears to be wash out for project. The debris has been tracked from the area in front of the hose bib across the patio and onto the driveway. Work is not complete. Respondent

should complete the work of the contract by appropriate methods and comply with all requirements for permitting/inspection required by the local building authority. Respondent should clean jobsite, remove construction debris and repair any damage cause during the performance of their work.

Following the issuance of the written directive, Respondent performed some additional work on the project, but did not complete the project. After the deadline in the directive expired, Investigator Melton was notified the corrective work had not been completed.

On or about April 7, 2021, Investigator Melton conducted a compliance jobsite inspection. At that time, Investigator Melton made the following observations:

Compliance Jobsite General Notes: Respondent did not appear for inspection. The work is not complete. Permit/inspection documentation not supplied by Respondent. Relocated A/C not operational. Open trench in laundry room has been partially corrected. Patio tile and concrete in area of hose bib is still covered in dried washout material. Required permits and inspection not completed.

The day after the inspection, Respondent contacted me and stated that he had not received notice of the inspection. I advised that it was sent to the same email and US mail address as the Jobsite Inspection Notice and Directive which he received. He advised that he had obtained a permit. City of Phoenix website shows a permit opened the day prior (4/6/21) to this compliance inspection. The Permit does not appear to include: new 50 amp circuit and relocation of A/C, relocation of furnace and new duct work and possible other [items].

Compliance Findings: Respondent did not comply with the Written Directive.

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(B); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

Investigator Melton testified that the permits were not pulled until April 6, 2021, and as of June 30, 2021, no inspections had been performed on the project.

Complainant testified that he had hired Respondent on previous projects and Respondent approached him about doing a project in the new house. According to Complainant, Respondent indicated he was licensed to perform the plumbing and electrical and would be able to complete the project. Complainant stated that he had informed Respondent of his $6,800.00 budget, but Respondent kept increasing the cost of the project.

Mr. Harris testified that he notified Complainant that he needed to hire and electrician to operate the equipment. Mr. Harris asserted that when he said Respondent would “Install 9kw self flushing steam generator for steam room adjacent laundry”, that did not mean that Respondent was responsible for ensuring electrical power ran to the steam generator. Mr. Harris argued that Complainant was extorting Respondent using the directive to

Administrative notice is taken of Respondent’s prior License record on July 21, 2021. Such prior License record reflects that Respondent’s License No. 294390 was first issued on September 18, 2014, and was current. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in discipline 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 Respondent performed work on the project without required permits having been issued by the City of Phoenix. Therefore, Complainant established that Respondent disregarded building codes of a political subdivision in violation of A.R.S. § 32-1154(A)(2)(b).

Respondent contracted to “install” a 9kw self flushing steam generator for Complainant’s steam room. Respondent argued, in essence, that it was not responsible for ensuring that the steam generator was functional once installed by Respondent. Such an argument fails to make a reasonable interpretation of the contract. Any purchaser would reasonably believe that an “installed” steam generator would be operational after the work was complete without any additional work not included in the contract.

The evidence established that Respondent did not “install” the steam generator as contracted. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established that the parties originally agreed to a contract price of $6,800.00, but Respondent charged Complainant $15,700.00 on the December 28, 2020 invoice. Therefore, Complainant established that Respondent did not complete the project for the cost agreed upon in the contract in violation of A.R.S. § 32-1154(A)(8).

The evidence established that Respondent did not 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. 294390 for a period of ten 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)(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, July 21, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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