ALJDEC decisions subject to certification as final

2021A-02844-CHC-ROC · Registrar of Contractors · 2021-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Hohn,

COMPLAINANT

Tucson Refrigeration Controls, LLC

License No. ROC 304275,

RESPONDENT

No. 2021A-02844-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 7, 2021

APPEARANCES: Complainant John Hohn appeared with his wife, Cassandra Hohn. Sal Torres appeared as a witness for Complainant John Hohn. Miguel Estrada appeared on behalf of Respondent Tucson Refrigeration Controls, LLC. Arizona Registrar of Contractors Investigators James Vildusea and Arlo Houston appeared as witnesses.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Tucson Refrigeration Controls, LLC (“Respondent”) is the holder of License No. 304275 issued by the Arizona Registrar of Contractors (“Registrar”). Miguel Estrada is Respondent’s qualifying party and member.

John Hohn (“Complainant”) contracted with Respondent for the installation of a new air conditioning unit at his residence.

On or about June 22, 2021, the Registrar received a Complaint against Respondent from Complainant alleging several items of poor work with respect to the project.

The Registrar assigned the Complaint to Investigator James Vildusea. After a jobsite inspection with which Investigator Arlo Houston assisted, Investigator Vildusea issued a Written Directive to Respondent that provided in pertinent part 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 August 27, 2021.

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

No permit had been obtained for this work.

Respondent is to obtain permit prior to performing and required work listed on the Directive.

A.R.S. § 32-1154 (A) 2: “Departure from or disregard of...a building code..."

Building Code: IRC R105.1 “Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the

installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”

Complaint Item 4: “A/C stand was installed incorrectly The instillation guide says the pad should be at least 1” larger that the unit on all sides. It is not. It’s equal.”

Investigator’s Observation: Verified: Upon the job site inspection, I observed the pad was not 1” larger than the unit on all sides. The respondent stated he will be correcting this issue/completing this repair.

Complaint Item 6: “the instillation guide says the pad must be level-it isn’t level. Which results in the entire ac unit not being level. This causes stress on the unit. The instructions manual says the pad must be level.”

Investigator’s Observation: Verified: Upon the job site inspection, the platform was not level. The respondent stated he will be correcting this issue/completing this repair.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: “TRC installed an ac unit, when they were done they told my wife, all work was completed and they wanted the final 25%. She........He insisted. She called me.... He said all work was done. I specifically asked if the ducts were repalced. He said they weren’t needed. I told him.....I asked if he repalce the ac.....”I asked him if he used a thermometer to check the temp of the middle room....He said he did and it was blowing the correct temp. I came home and cehcked the temp, and it

was 10 degrees too hot. Miguel told me it was hot in the attic,....

Investigator’s Observation: Unverified: Upon Inspection, the complainant stated a bedroom was too hot. Prior to the start of the JSI, the complainant was asked to lower the thermostat to 78 degrees. During the course of the JSI, a temp probe was placed in the center of the bedroom. Upon further

inspection, the temp probe returned to a 77 degree reading.

Complaint Item 2: “A/C was installed incorrectly the maximum refrigeration length time is mandated (by the instillation guide) not to go longer than 60 feet. He installed it well over 60 ft. (approx. double that)”.

Investigator’s Observation: Unverified: Upon inspection at the jobsite, I observed the line set to be approximately 55 feet to the condensing unit and to the handler. The Installers guide for American Standard under 2.2 Refrigerant Piping Limits revealed the following 1. The maximum length of

refrigerant lines from outdoor to indoor unit should NOT exceed sixty (60) feet. The complainant and respondent reported there were no discussions on what was measured.

Complaint Item 3:”A/C Stand was installed incorrectly-the stand TRC put the AC on is recommend (by the instillation guide) to be concrete. They installed what appears to be plastic. The 3rd party inspector recommended metal allowing for an air gap or a fixture that can’t store excess water. ”

Investigator’s Observation: Unverified: Upon the job site inspection, the American Standard installation guidelines for the A/C unit did not recommend the stand to be concrete. The installers guide referenced to Section 4. Setting the Unit 4.1 Pad Installation; When installing the unit on a support pad, such as a concrete slab, consider the following... specifics to installation. No mention of what materials the slab should be constructed with.

Complaint Item 5: “A/C pad installed incorrectly-The instillation guide says the pad must be separate from any structure. It’s separate (as in not the same thing)m but there is no air flow., in case a leak were to arise, it will get stuck underneath and could cause roof damage.”

Investigator’s Observation: Unverified: The platform was installed on the roof, not built as part of the roof surface (not framed in).

Complaint Item 7: “the inspector and the 3rd party also mentioned there was no safety overflow installed.”

Investigator’s Observation: Unverified: Upon the job site inspection, no safety overflow was evident. This statement by the complainant does not implicate a workmanship issue for me to observe and report on.

Complaint Item 8: “the inspector and the 3rd party mentioned a new condensation pump was not installed”

Investigator’s Observation: Unverified: No contract agreement to indicate a new unit was required.

Complaint Item 9: “The inspector and the 3rd party mentioned surge protector was not installed. This may be the result of the leak I mentioned to them about.”

Investigator’s Observation: Unverified: Contract between both parties does not specify surge protector to be replaced. Complainant was asked to show the surge protector and he reported he was not sure what that item was. Statement by the complainant does not contain a workmanship allegation to report on.

Complaint Item 10: “the inspector and 3rd party mentioned the gas whip was not replaced with a new yellow whip.”

Investigator’s Observation: Unverified: Contract between both parties does not specify the gas whip to be replaced. Statement by the complainant does not contain a workmanship allegation to report on.

Complaint Item 11: “the inspector and 3rd party mentioned the furnace supply plenum was not removed. It is needed to be replaced so an upsized to be able to supply good air flow.”

Investigator’s Observation: Unverified: Contract between parties does not specify plenum was to be replaced.

Complaint Item 12: “the inspector and 3rd party estimated 1/3 of the coil is choked off by placing against the drywall ceiling.”

Investigator’s Observation: Unverified: Statement by the complainant is insufficient evidence to determine a workmanship claim.

Complaint Item 13: “No duct work or solution was done to the back rooms as promised to get air flow there”

Investigator’s Observation: Unverified: No work was performed by the respondent, no ductwork was replaced, no modifications made by the respondent. Both parties reported there were no verbal agreements for the ductwork.

Amendment items submitted on 7/15/2021

Complaint Item 14: “Ac unit is making a strange noise 20% of the time. If sounds like it’s about to die. Unit is less than 2 months old”

Investigator’s Observation: Unverified: Upon job site inspection, the A/C unit was operational and a noise emitted from the mechanical closet where the A/C unit was located. The respondent reported that the noise came from the condenser pump. Contract between parties does not specify condenser pump be replaced.

Complaint Item 15: “Recently noticed TRC cut the condensation line. It now drips on the side of my house. It drips down where the previous ac line was. The holes where they took the line out, are not filled. This water can get there and mold my house and or increase pest activity.”

Investigator’s Observation: Unverified: There is Evidence of the condensation line was cut as the condenser unit was relocated from the ground to the roof per contract. Contract between the parties does not specify the holes be filled. Statement by the complainant does not contain a workmanship allegation to report on.

Complaint Item 16: “TRC didn’t replace the flooring where the coil part I installed. Another 3rd party ac company said it’s standard practice. ”

Investigator’s Observation: Unverified: Upon inspection at the jobsite, complainant did not present sufficient evidence that the flooring was to be replaced. Contract between both parties does not specify replacement of the flooring.

Amendment item submitted 7/18/2021

Complaint Item 17: “This morning we woke up to the sound of heavy dripping. We found the leak, and it was in the AC closet (not sure the official name for it). We attribute the leak to the work done by TRC and we would like to add that to complaint # ROC [number redacted].

We might have to have someone repair that so that we don’t have more damage to our roof/house. We have messaged someone to see about a repair. We did take a video in case. And I will keep you updated.”

Investigator’s Observation: Unverified: Upon the job site inspection, staining was present in the mechanical closet on the ceiling surface. The complainant reported they have not hired anyone to repair the leak as reported by email. Homeowner and respondent accepted an 8”connection from the ceiling to line set penetration connected the condenser to the evaporator. The homeowner removed a small portion of a black cover surrounding the line set near the ceiling and it was evident the copper tubing

was not new. There is insufficient evidence to determine the staining was caused by the respondents’ performed work.

Warning Letters

In additional to the allegations in the complaint, the following Warning Letters were issued:

Warning Letter: Elements of a Contract.

Investigator’s Observation: The respondent’s contract is missing the following information:

Governing Rule: A.R.S. § 32-1154 (A) 12 Namely, A.R.S. § 32-1158 Minimum Elements of a Contract.

Item 9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

Item 4: The estimated date of completion of all work to be performed under the contract.

Item 9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

Item 9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section

32-1155, subsection A.

Item 9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

Item 9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

All errors in original.

Following the issuance of the Written Directive and after the deadline in the Written Directive expired, Investigator Vildusea ascertained that during the permitting process, the installation failed the mechanical inspection by the Pima County inspector.

On September 29, 2021, Investigator Vildusea conducted a compliance inspection. Investigator Vildusea’s Compliance Jobsite Inspection Notes state the following:

Compliance Jobsite Inspection General Notes:

The initial JSI was 7/21/21; the respondent did not obtain a permit for this work.

The respondent later obtained and received a permit from Pima County on record P21BP07372.

On 9/21/21, Pima County scheduled a Mechanical Final inspection at the complainants’ residence.

The Inspection resulted with a failed status.

On JSI 7/21/21, the following complaint items were verified:

Complaint Item 4: “A/C stand was installed incorrectly The instillation guide says the pad should be at least 1” larger that the unit on all sides. It is not. It’s equal.”

Investigator’s Observation: Verified: Upon the job site inspection, the platform was not level. The respondent stated he will be correcting this issue/completing this repair.

This Compliance Inspection was only to evaluate the current conditions of items requiring corrective work as stated on the Directive. Those items are listed below.

Compliance Findings: During the compliance job site inspection, the respondent admitted there was no subsequent inspection prior to today’s scheduled CJSI and was not advised by the County of any inspections. The respondent saw the ROC measurement atop the A/C unit) was not level and raised the level tool approximately 1 inch until it leveled. The respondent admitted he did not know how that happened after seeing the result. The respondent failed to conform with the Pima County Inspection objectives and both parties was informed to review the County Inspection report for further details.

In summary, the County inspection dated for 9/21/21 in comments revealed item #1, Make sure installation is according to manufacturers’ requirements. The pad was not secure and not level.

The respondent has not taken appropriate corrective action to comply with the Directive.

As stated on Directive: “A/C stand was installed incorrectly The instillation guide says the pad should be at least 1” larger that the unit on all sides. It is not. It’s equal.”

Investigator’s Observation from initial inspection: Verified: Upon the job site inspection, I observed the pad was not 1” larger than the unit on all sides. The respondent stated he will be correcting this issue/completing this repair.

Compliance Inspection Findings for this item: This has NOT been corrected.

As stated on Directive: “the instillation guide says the pad must be level-it isn’t level. Which results in the entire ac unit not being level. This causes stress on the unit. The instructions manual says the pad must be level.”

Investigator’s Observation from initial inspection: Verified: Upon the job site inspection, the platform was not level. The respondent stated he will be correcting this issue/completing this repair.

Compliance Inspection Findings for this item: This has NOT been corrected.

Specific finding from the Pima County Inspection revealed the following:

INSPECTION STATUS DATE RESULTED BY COMMENTS

4090 Mechanical Final Fail Inspection date: 09/21/2021 STEVEN HARPER

1. MAKE SURE INSTALLATION IS

ACCORDING TO MANUF.

REQUIREMENTS

2. CONDESATE DRAINS MUST BE MIN.

3/4 INCH TO APPROVED LOCATION

ON GRND.

3. COIL MUST MOUNTED TO SECURE

LOCATION AND LEVEL.

MANUAL J MUST MATCH RESIDENCE

4. ALL CONDENSERS REQUIRE INSITE

DISCONNECTS.SPECTIONDESCRIPTION STATUS INSPECTION HOLD

All errors in original.

During the compliance inspection, Investigator Vildusea observed that appropriate corrective work was not completed. Investigator Vildusea referred the matter 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), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Vildusea testified consistently with his findings contained in the Written Directive with regard to the items of Complaint that were verified, as well as with regard to the items of Complaint that were not verified. Investigator Vildusea testified that he did not issue the Written Directive until August 12, 2021, notwithstanding that the jobsite inspection was conducted on July 21, 2021, because the parties requested additional time for the obtaining of the permit, which was issued on August 18, 2021. Investigator Vildusea also testified consistently with his findings contained in the Compliance Jobsite Inspection Notes.

Investigator Vildusea testified regarding Respondent’s contract documents, that the contract was not signed by either party, that it was lacking a completion date and the advisement to the property owner of the right to file a written complaint with the Registrar.

Investigator Vildusea testified in response to Complainant’s contention that the pad for the unit should be concrete, that a concrete pad cannot be placed on a roof. Regarding the measurement of the refrigerant line, Investigator Vildusea was comfortable with the measurement of such, however, clarified that the measurement was an estimate only.

Investigator Vildusea testified that Respondent failed to comply with the Written Directive.

Investigator Houston testified that he assisted Investigator Vildusea in determining that the unit was out of level, that the pad size was incorrect, and in the measurement of the refrigerant line. Investigator Houston emphasized that the measurement of the line was an approximate measurement. Investigator Houston further testified that any references to the manual J load calculations and the installation guidelines have no bearing on the Witten Directive and the requirement that Respondent comply with its terms.

Sal Torres of StrongBuilt testified that he provided to Complainant a quote to repair or complete Respondent’s work. Mr. Torres testified with specificity as to what he believed the issues are with Respondent’s installation. Mr. Torres explained that ductwork was needed because the system was originally designed for a swamp cooler. Mr. Torres also testified that his company policy mandates that it cannot repair a poor installation performed by another contractor, as it will not “put a band aid on it,” and therefore, the installation of a new unit would be necessary.

Cassandra Hohn testified regarding her experience with Respondent. Ms. Hohn testified that they hired Respondent to install a new air conditioning unit and that it took two weeks for the completion of the installation. When Respondent completed its installation, Mr. Estrada told her it was “all up to code.” Ms. Hohn testified that Mr. Estrada’s statement “got her to thinking if it was really up to code,” and she hired another contractor to “check” Respondent’s work and was told that the “whole thing needed to be fixed.”

Mr. Hohn testified that the length of the refrigerant line is actually 82 feet, that Respondent failed to obtain a permit, and Respondent failed inspection. Mr. Hohn agreed with the violations alleged against Respondent by the Registrar.

Mr. Estrada testified that Complainant contacted him in May 2021 to install “two mini split units,” but due to the fact that the system was so outdated, it was determined that a new unit was needed. Mr. Estrada provided Complainant a quote for an American Standard five ton unit. Complainant requested that the condensing unit be placed on the roof. Complainant paid Respondent $8,100.00 and the unit was delivered that same day. Respondent failed to comply with the installation requirements for the unit. Mr. Estrada testified that Respondent began to perform corrective work, however, during that process, Complainant would not return Respondent’s calls to schedule the remainder of the work. Instead, Complainant hired a third party to perform an inspection.

Mr. Estrada asserted that Respondent provided what Complainant requested, and initially did not obtain a permit because “he was trying to save Complainant money.”

Mr. Estrada testified that Respondent removed the base, installed a replacement wood base, leveled the unit with rubber pieces, obtained the permit, and complied with the Registrar’s requirements, with the exception of Respondent’s contract not containing the required elements.

Administrative notice is taken of Respondent’s prior License record on December 13, 2021. Such prior License record reflects that Respondent’s License No. 304275 was first issued on July 5, 2016, and is active. Such prior License record also reflects that there is only the instant open Complaint, zero complaints resulting in discipline, and zero resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence 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 evidence established that Respondent’s contract documents were not in compliance with the Registrar’s requirements. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(A).

The evidence 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. 304275 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contract documents to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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.

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-137160-45720000Done this day, December 15, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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