ALJDEC decisions subject to certification as final

2021A-01166-CHC-ROC · Registrar of Contractors · 2021-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Monica D Durkos ,

COMPLAINANT

Wildcat Heating and Cooling LLC

License No. ROC 257964,

RESPONDENT

No. 2021A-01166-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 8, 2021

APPEARANCES: Monica D. Durkos on her own behalf; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On June 28, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case erroneously showing that the hearing would be conducted at ROC’s office in Tucson at 1:00 p.m. on August 12, 2021.

Although the Office of Administrative Hearings informed the parties through email that the hearing would be conducted by video conference or telephone and provided the parties with the required contact information, no representative for Respondent Wildcat Heating and Cooling LLC called in or appeared at 1:00 p.m. on August 12, 2021. Considering the circumstances, the Administrative Law Judge informed Complainant that the hearing would be continued.

Through an Order dated August 13, 2021, the matter was rescheduled to convene at the Office of Administrative Hearings at 9:00 a.m. on September 8, 2021, with the parties informed they could appear remotely by telephone or video conference.

On September 8, 2021, no representative appeared for Respondent at the scheduled hearing time and the matter was convened in its absence at about 9:10 a.m.

Through its Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 257964 issued by ROC.

Complainant is Monica D. Durkos.

In May 2019 Respondent installed a Lennox Package Unit at a house occupied by Complainant’s mother.

On or about March 17, 2021 Complainant filed with ROC a complaint against Respondent alleging poor work and abandonment on Respondent’s part.

ROC investigator Mike Springer conducted a jobsite inspection on April 13, 2021.

On April 14, 2021, ROC issued to Respondent a Directive that provided in part:

**** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 16, 2021.

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Compliance Item: 1 - We wish to inform you of a continuing problem with the Lennox unit at this address. This unit is not heating adequately. Mostly tepid temperature air comes out of the registers. Fan runs constantly if room temperature is under the set temperature. The service people who were last here, (Devin, Riley, [Hannah]) were here for most of the day.

Investigator’s Observation: I turned the unit on and raised the thermostat temp to get the heat to run. At first, heat was working, I checked a floor vent to see if heat was coming out. Approximately 3-4 minutes with the heat running, the heat dissipated and blew room temperature air. Running the Air conditioning had the same effect, cold for a few minutes then back to room temperature.

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.

ROC determined that the other items in Complainant’s complaint did not require correction.

Respondent did not make any attempt to correct the deficiencies noted in ROC’s Directive.

ROC issued to Respondent a Citation dated May 21, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent’s answer to ROC’s Citation shows Respondent’s position that the unit had been subject to abuse or neglect in that there was evidence of packrat activity and of water hitting the unit. Mr. Springer provided credible testimony showing that there was no evidence of packrat activity during his jobsite inspection and to the effect that water would not cause the problems at issue.

Prior to the hearing, Complainant had another contractor correct the deficiencies identified by ROC, which was accomplished by adjusting the cooling fan and the heater’s flame height. No parts required replacement and the cost was $135.

Complainant testified as to her belief that before she filed her complaint, Respondent may have sold her parts that were not required.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; 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.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

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

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 section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

The preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

Considering the facts and circumstances of this matter, it is appropriate for Respondent’s license to be suspended for one day and for Respondent to be assessed a civil penalty of $500.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Wildcat Heating and Cooling LLC’s license No. 257964 for one day and that the Registrar impose against Respondent a civil penalty of $500.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, September 27, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000