ALJDEC decisions subject to certification as final

2021A-00885-CHC-ROC · Registrar of Contractors · 2021-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Shiloh Community Church,

COMPLAINANT

A/C Pro LLC,

License No. ROC 308507,

RESPONDENT

No. 2021A-00885-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2021

APPEARANCES: Samuel Burba appeared on behalf of Complainant Shiloh Community Church. Respondent A/C Pro LLC was represented by Mark Molique, Esq. Steve Klein, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

A/C Pro LLC (Respondent) is the holder of License No. 308507 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 5, 2019, Shiloh Community Church (Complainant) signed a contract with Respondent for installation of two new HVAC systems in Complainant. The total amount paid was $60,750.80.

On or about March 1, 2021, the Registrar received a Complaint containing five items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Steve Klein. The jobsite inspection was performed on March 30, 2021.

Investigator Klein then issued a written directive on or about April 5, 2021 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 April 26, 2021.

. . .

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

Complaint #1 Improper wiring that is not up to code

Inspector’s Observation: Complainant provides third party paperwork supporting allegations. Also no permit was purchased, nor is the Respondent licensed for commercial work.

• Mechanical system should be installed per manufactures specifications and building codes.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Complaint #2 Improper HVAC Air handler installation leading to myriad of problems.

Inspector’s Observation: Complainant provides third party paperwork supporting allegations. Also no permit was purchased, nor is the Respondent licensed for commercial work.

• Mechanical system should be installed per manufactures specifications and

building codes.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Complaint #3 HVAC Units wired for heating or cooling mode only and changes between modes must be done through technician

Inspector’s Observation: Complainant provides third party paperwork supporting allegations. Also no permit was purchased, nor is the Respondent licensed for commercial work.

• Mechanical should be installed per manufactures specifications and building codes.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Complaint #4 Fan coil unit has a condensate drip that destroys the filters

Inspector’s Observation: Leaks should be corrected.

Complaint #5 Refrigerant leaks in three of the four condensers that were installed on the Worship Center

Inspector’s Observation: Verified stains on exterior of units.

• Deficiencies caused by malfunction of system equipment are subject to the terms of the manufactures warranty unless workmanship by the contractor is involved.

(All errors contained in the original)

On or about April 29, 2021, the Registrar issued a Directive Compliance, stating, “[n]o compliance inspection was performed, Complainant emailed stating the directive wasn’t addressed.”

On May 14, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about May 28, 2021, 2021, Respondent e-mailed an Answer to the Registrar.

On or about June 18, 2021, a Notice of Hearing was issued setting a hearing on July 22, 2021 at the Office of Administrative Hearings, an independent state agency.

After a continuance, the hearing was held on August 26, 2021.

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

Investigator Klein testified that there was no representative from Respondent at the jobsite inspection so he went by what he saw, and what he saw was not very professional. Investigator Klein testified that the work looked pieced together and looked like heart bypass surgery.

In addition, Investigator Klein testified that this was his first inspection for a commercial HVAC system.

Investigator Klein testified that the time to complete the directive was reasonable, but if Respondent had requested more time he would have tried to see if additional time could be given by Complainant.

As to the wiring issue, Investigator Klein testified that no specific wiring problems were shown to him, and when shown his picture from the jobsite inspection, he could not tell if the wiring was proper.

Investigator Klein also testified that he was not aware that other companies had performed work on the system since Respondent’s work was finished.

Investigator Klein testified that there should have been a building permit for a job that size.

Complainant presented the testimony of Samuel Burba, the head pastor for Complainant. Mr. Burba became the head pastor in October 2021. Mr. Burba testified that he was not the head pastor at the time of the contract with Respondent.

Mr. Burba testified that after reviewing the invoices received by Complainant, it appeared that the system was not functioning properly and Complainant hired another company, K&B A/C and Heating (K&B), to perform work on the system.

In addition, Mr. Burba testified that K&B performed the work listed on the invoices and Complainant made the corresponding payments.

Finally, Mr. Burba testified that he was not aware if K&B performed any work on the air handler.

Respondent presented the testimony of Daniel Santoro, and offered 13 exhibits into evidence.

Mr. Santoro testified that while he was a member of Shiloh Community Church, he was asked to repair the HVAC systems on the south side of the building.

As to the permitting issue, Mr. Santoro did not believe that a permit was required due to the system being retro-fitted. He also became aware that a permit had been issued on April 25, 2019 by Stevens Leinweber Construction.

As to Complaint item 5, Mr. Santoro testified that when he installed and tested the unit there were no leaks. However in examining the jobsite photographs it appeared that oil was staining the condenser, and that someone was venting or overcharging the refrigerant.

Mr. Santoro testified that after reviewing the pictures from the jobsite inspection, the issues displayed were not caused by his work. He believed that the issues were caused by K&B or other contractors.

Mr. Sanotro testified that when he reviewed the K&B invoices, he found the descriptions of the problems to not be accurate or not work that he performed. He further testified that some of the work described in the invoices were not necessary or possibly incorrect for this type of system.

Mr. Santoro further testified that some of the issues could have come from K&B rigging up a modified air return for portable air conditioning units, or when he became aware that someone was crawling through the attic space running wire and collapsed an air duct.

Mr. Santoro also testified that the thermostats were working correctly and could be controlled remotely by anyone with a password.

As to why no work was performed by Respondent when Mr. Burba called, Mr. Santoro testified that once Complainant decided to use another company, he would not service the units and that he was homeschooling his son during the COVID 19 pandemic.

Mr. Santoro testified that he was not at the jobsite inspection because he had not received a notice of the same until the day of, and when he contacted Investigator Klein, he inquired as to what the next steps were in the process.

Administrative notice is taken of Respondent’s prior License record on September 8 Such prior License record reflects that Respondent’s License No. 308507 was first issued on October 14, 2016, 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 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).

In this case, Complainant (and the Registrar) has not met the burden of proof to demonstrate that Respondent’s work was not in conformity with the Registrar’s standards. First, Investigator Klein testified that he was not aware that there were other companies who worked on the system. Second, Investigator Klein testified that even from his own photographs he could not tell if the wiring was proper. Third, there was no other persuasive testimony or evidence from Complainant that Respondent’s work did not comply with the Registrar’s standards or that Respondent’s work caused the problems. Finally, Complainant’s testimony although persuasive that there may have been an issue with the system, was not persuasive that it was due to poor workmanship from Respondent. Therefore, Complainant and the Registrar failed to establish 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).

Finally, because there was no violation of A.R.S. § 32-1154(A)(3), there can be no violation of A.R.S. § 32-1154(A)(22), for failure to comply with the Directive.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the case number 2021-00885 be dismissed against the Respondent.

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, September 8, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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