ALJDEC decisions subject to certification as final

2021A-00997-CHC-ROC · Registrar of Contractors · 2021-08-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arlene Yeskin,

COMPLAINANT

Sta Cool Refrigeration Corp

License No. ROC 188209,

RESPONDENT

No. 2021A-00997-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 12, 2021

APPEARANCES: Complainant Arlene Yeskin appeared on her own behalf. David Yeskin appeared as a witness. David Lewis appeared on behalf of Respondent Sta Cool Refrigeration Corp. Arizona Registrar of Contractors Investigator Chris Fultz appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Sta Cool Refrigeration Corp (“Respondent”) is the holder of License No. 188209 issued by the Arizona Registrar of Contractors (“Registrar”). David Michael Lewis is the qualifying party for and a member of Respondent.

In July 2020, Arlene Yeskin (“Complainant”) and her son, David Yeskin, contracted with Respondent for the installation of a tankless water heater in their home.

On or about March 9, 2020, Complainant filed a Complaint with the Registrar against Respondent alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Chris Fultz. A jobsite inspection was scheduled for April 6, 2021. Both Complainant and Respondent attended the jobsite inspection. After the jobsite inspection, on April 12, 2021, Investigator Fultz 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 May 12th, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Piping and connectors need to be replaced to code

with copper with shut off valve and water leak damaging ceiling of the garage.

Investigator’s Observation: The leaking shark bite fixture was replaced prior to the inspection. The other shark bite fitting are within industry standards. At the time of the inspection, the ceiling was still open and that was because the access was left open for me to inspect and to make it into a access panel for future use. Lastly, a concern was brought up about the shut off valve for the water heater. According to the City of Buckeye, there is an automatic shut off valve needed to meet code. This will need to be fixed by appropriate means.

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 in original.

Investigator Fultz testified consistently with the findings contained in the Written Directive. Investigator Fultz testified that at the time of the issuance of the Written Directive, Respondent’s license was suspended for lack of bond. Investigator Fultz further testified that Mr. Lewis communicated to him that because “the shut off valve was more expensive that what was charged, he would not do anymore work” and that he “would not comply” with the Written Directive because it was “too expensive.”

Investigator Fultz forwarded the Complaint to the Registrar’s Legal Department.

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).

Investigator Fultz testified that he did not conduct a compliance Inspection or a pre-hearing inspection because Respondent did not perform any further work. Investigator Fultz further testified that Complainant contacted him regarding an additional leak resulting from the previous work performed by Respondent and Investigator Fultz advised Complainant to hire another contractor to perform the repairs.

Complainant testified that the most recent leak was repaired by a plumber who had to replace some pipes because they were not tied down by Respondent. Complainant further testified that Mr. Lewis had told her that an automatic shut off valve was not necessary.

David Yeskin testified that they hired another plumber to repair the second leak because Respondent’s license was suspended.

Mr. Lewis testified that he did not receive any calls regarding the second leak, and that he “feels that the Written Directive was inconclusive” concerning what Investigator Fultz required. Mr. Lewis testified that he attempted to obtain clarification from Investigator Fultz, but did not receive clarification. Mr. Lewis asserted that it was a “hostile work environment,” that Complainant was “looking for something for nothing,” that he takes pride in his work, and that Respondent has a 4.3 Google rating.

Administrative notice is taken of Respondent’s prior License record on August 12, 2021. Such prior License record reflects that Respondent’s License No. 188209 was first issued on August 27, 2003, and has been suspended for lack of bond since November 20, 2020. Such prior License record also reflects that there is the instant open complaint and one 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 Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). A party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119. “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). A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. section 32-1154(A) provides the following:

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code R49108(a) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

The credible, substantial, and probative evidence of record 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 credible, substantial, and probative evidence of record further established that Respondent did not compete the corrective work following the Written 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. 188209 for a period of five (5) 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, August 30, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000