ALJDEC decisions subject to certification as final
2021A-01229-CHC-ROC · Registrar of Contractors · 2022-10-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Cordelia Amalia Archuleta,
COMPLAINANT,
v.
Air U B Cool LLC
ROC License No. 319572,
RESPONDENT.
No. 2021A-01229-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 05, 2022 at 9:00 AM.
APPEARANCES: Cordelia Amalia Archuleta (“Complainant”) appeared on her own behalf. No appearance(s) by or on behalf of Air U B Cool LLC (“Respondent”). Chris Fultz appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On April 16, 2018, the Registrar issued License No. 319572 Specialty Dual CR-39 Air Conditioning and Refrigeration contracting to Respondent. Though last renewed through April, 30, 2020, the license expired on May 03, 2021, by operation of law. Uriel Benitez is the Qualifying Party/Member on the license. Gerardo Garcia is also listed as a Member for the license. Respondent’s address of record for the license is 1932 W. 19th St. Yuma, AZ 85364-5212. Respondent has an active $6,750.00 surety bond on the licensed issued by RLI Insurance Company effective April 13, 2018. There is no prior discipline noted for the license, save one open complaint which is presumably Complainant’s.
On March 23, 2021, the Registrar received a 5-item complaint from Complainant against Respondent’s License No. 319572 alleging abandonment and poor workmanship of their project. The Registrar designated it Complaint No. 2021-01229 and assigned to Chris Fultz (“Investigator Fultz”) for investigation.
On June 02, 2022, Investigator Fultz issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 03, 2022, at 10:00 a.m.
On June 03, 2022, Investigator Fultz performed his jobsite inspection. Respondent was not present. Investigator Fultz conducted a review of the contract executed between the parties and inspected the work that had been performed on the project to date. He also took 12 photographs of the project site. When he was finished, Investigator Fultz drafted his Inspection Notes. Ultimately, Investigator Fultz substantiated 3 complaint items. Specifically, Investigator Fultz substantiated complaint items 2-3 and 5. Investigator Fultz concluded that Respondent’s work on the project failed to meet the Registrar’s minimum workmanship standards.
On June 10, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a). Respondent was given until June 25, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.
On June 24, 2022, the Registrar received Respondent’s Answer, whereby Respondent denied the alleged statutory violation. In pertinent parts, Mr. Garcia asserted that the unit installed for the project was new, drywall was not included in the parties’ contract, and that the rust at the site was due the unit that had been replaced. Mr. Garcia maintained that the PVC pipe from the old unit could not be replaced because it would have required drywall work that Respondent did not do.
On June 27, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 17, 2022. Per the July 18, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Fultz as a witness. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 11822 W. Edgemont Ave. Avondale., AZ 85392.
On or about August 27, 2019, Complainant and Respondent entered into a $5,000.00 for the installation of a heating, ventilation, and air conditioning (“HVAC”) unit at Complainant’s residence. On September 06, 2019, Complainant paid the contract in full. Respondent also agreed to remove Complainant’s existing HVAC unit prior to installation of the new HVAC unit. Per the contract, Respondent provided a 10-year parts warranty and a 2-year labor warranty.
On or about August 10, 2020, Complainant complained about the newly installed HVAC unit to Mr. Garcia. At that time Complainant was advised that Respondent was no longer in business, and that Complainant’s concerns would not be addressed.
When the complainant was originally received by the Registrar it was investigated as an unlicensed complaint, in large part, because Complainant used an Unlicensed Complaint Form as opposed to a Licensed Complaint Form to file her complaint.
A Written Directive from the Registrar (“Directive”) was not issued in the matter due to the status of Respondent’s license at the completion of Investigator Fultz’s jobsite inspection. Instead, on June 06, 2022, Investigator Fultz forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
In closing, Complainant argued that she wanted “satisfaction.”
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”
The material facts in the case are not in dispute.
It is undisputed that the parties had a $5,000.00 HVAC installation contract, which Complainant paid in full. It is also undisputed that Respondent’s work on the project failed to meet the Registrar’s minimum standards.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for the resulting workmanship deficiencies on Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain its burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance on this project. Mr. Garcia was put on notice months prior to the expiration of Respondent’s license that Complainant had several workmanship concerns; which were clearly covered under the warranty Respondent provided in the parties’ contract. Thus, Respondent had ample time to address said concerns before Respondent’s license expired. Although Respondent failed to appear and present evidence in its defense, any argument regarding Respondent being “out of business” would not absolve Mr. Garcia’s duty to perform corrective work on this project.
Therefore, because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Air U B Cool LLC, ROC License No. 319572, be suspended for three (3) days based on its violation(s) of Ariz. Rev. Stat. § 32-1154(A)(3).
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.
Done this day, October 20, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Air U B Cool LLC, Respondent
1932 W. 19th St.
Yuma, AZ 85364-5212,
[email redacted]
Cordelia Amalia Archuleta, Complainant
11822 W. Edgemont Ave.
Avondale, AZ 85392
[email redacted]
By: Miranda Alvarez
Legal Secretary