ALJDEC decisions subject to certification as final

2021A-02613-CHC-ROC · Registrar of Contractors · 2021-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Stephen Barton,

COMPLAINANT

State Wide Air Conditioning LLC

License No. ROC 326322,

RESPONDENT

No. 2021A-02613-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 18, 2021

APPEARANCES: Complainant Stephen Barton appeared on his own behalf via Google Meet. Jerry Oden and Justin Oden appeared on behalf of Respondent State Wide Air Conditioning LLC. Wes Ellington, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

State Wide Air Conditioning LLC (Respondent) is the holder of License No. 326322 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 10, 2020, Stephen Barton (Complainant) entered into a contract for $23,600.00 with Respondent for the installation of air conditioning units in his home.

On or about June 9, 2021, the Registrar received a Complaint containing 7 items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Wes Ellington. The jobsite inspection was performed on June 11, 2021.

Investigator Ellington then issued a Written Directive on or about June 14, 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 July 14, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 2. Condensate lines are not installed properly. Property has 3 split system units. 2 drain incorrectly due to reversed lines. One is currently leaking in the wall. Likely other lines are not glued either.

Investigator’s Observation: Verified. The Complainant had the wall opened for inspection. There was a significant amount of water inside the wall that appeared to be coming from the fitting in the condensation line. Primary and secondary condensation lines are reversed, water drips from upper line first. The second air handler located over the breezeway was also inspected and was leaking from the unit onto the deck and the sheetrock ceiling. There is no pan installed under this unit and no P trap installed in the condensation lines. The Respondent will need to correct these issues by the appropriate means as well as the water damage caused by the leakage.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 3. Bath Fan at Master Bedroom is hitting shroud, or defective. Noise is loud and apparent it is not operating as it should.

Investigator’s Observation: Verified. The fan makes noise that is not normal. The Respondent will need to correct this by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 7. Condensate lines have-not been trimmed, glued, and terminated at the exterior.

Investigator’s Observation: Verified. Many of the condensation line fittings easily come apart by hand, are leaking, cracked, and appear to have not been glued. The Respondent will need to correct this by the appropriate means as well as the water damage caused by the leakage.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original)

On August 5, 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 August 16, 2021, Respondent sent an Answer to the Registrar, stating, “All directives issued...has (sic) been corrected by the appropriate means necessary on July 30, 2021 All was performed in accordance to professional industry standards.”

On or about September 17, 2021, a Notice of Hearing was issued setting a hearing on October 18, 2021 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Ellington testified as to the Registrar’s involvement and the above timeline.

Investigator Ellington testified that while a compliance jobsite inspection was scheduled for July 22, 2021, Complainant requested that it be cancelled to allow Respondent additional time (one week) to complete the drywall repairs.

Investigator Ellington testified that on July 30, 2021, Complainant informed him that the drywall repairs were not completed. Investigator Ellington also testified that he confirmed the same with Jerry Oden.

In addition, Investigator Ellington testified that because of this response, as well as the additional week provided by Complainant, he believed that there was enough time for Respondent to complete the drywall repairs and it failed to do so, thus, he referred the case to the legal department for a citation.

Finally, Investigator Ellington testified that it was Respondent’s responsibility to correct any water damage caused by the leakage, and that would include proper repair of drywall, or trim, or flooring if necessary.

Complainant testified that while Complaint item 3 (the bathroom fan), and the condensate lines were corrected, Respondent had failed to properly repair the damage to the drywall caused by the water leak.

In addition, Complainant testified that none of Respondent’s workers appeared at his residence until July 12, 2021, two days before the expiration of the Directive. However, Complainant still granted a week extension for Respondent to complete the work.

Complainant testified though that even after granting the extra week, Respondent’s workers again showed up on the last day to make the repairs.

Complainant testified that drywall compound was “everywhere” and believed that Respondent’s workers were making the job worse. Further, Complainant testified that the texture was not correct either.

Finally, Complainant testified that he believed that he bent over backwards to grant additional time, and Respondent failed to fully complete the job. Because of this, Complainant requested that Respondent should have its license revoked.

Jerry Oden testified first on behalf of Respondent. He testified that this was his first time being brought up on frivolous charges, and Complainant still owed $900.00 for the work performed.

Justin Oden testified that the pipe was definitely glued and he believed that the leak was caused from another contractor’s negligence.

Justin Oden testified that he made the repairs to the drywall, but acknowledged that it was not textured nor painted. He testified that he did not believe that was required by the Directive.

Also, Justin Oden testified that he did not reach out to Investigator Ellington to determine if he was supposed to texture the drywall and paint the repairs.

Further, Justin Oden acknowledged that Complainant offered to provide his own “drywall guy” at cost, but he refused the same and preferred to complete the work on his own.

Finally the Odens testified that they did everything which was required by the Directive and did everything possible to make Complainant happy.

Administrative notice is taken of Respondent’s prior License record on October 29, 2021. Such prior License record reflects that Respondent’s License No. 326322 was first issued on September 25, 2019, and reflects that there was one open complaint, namely the present complaint. The license is currently suspended however as of October 1, 2021.

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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The Tribunal does not find Respondent’s testimony credible that the leaks were caused by another contractor’s negligence. 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 evidence established Respondent failed to fully complete the corrective work following the Directive being issued. All parties agreed that the bathroom fan was completely repaired as well as the leaking from the condensate lines. Because there was no compliance jobsite inspection performed, and neither party presented photographic evidence, it is difficult to determine if the repairs to the drywall were sufficiently completed. That being said, Justin Oden admitted that the drywall was not painted and did not inquire of Mr. Ellington if painting was required. The Tribunal finds then that the drywall repair was not fully completed according to the Directive. 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. 326322 for a period of two days.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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 30 days from the date of that certification.

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-137160-45720000Done this day, October 29, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000