ALJDEC decisions subject to certification as final

2021A-02915-CHC-ROC · Registrar of Contractors · 2021-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jeff H Haymes,

COMPLAINANT

Ameri-Air HVAC LLC

License No. ROC 321218,

RESPONDENT

No. 2021A-02915-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 19, 2021

APPEARANCES: Complainant Jeff H. Haymes appeared on his own behalf. Respondent Ameri-Air HVAC LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Ameri-Air HVAC LLC (Respondent) is the holder of License No. 321218 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 3, 2020, Jeff H. Haymes (Complainant) entered into an agreement with Respondent for the installation of two mini split AC head units at his home.

On or about , the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jason Simpson. After a jobsite inspection, Investigator Simpson 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 August 23, 2021.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Condensation is building up on the 18K Mini Split AC head. AC head constantly leaks. Possible reasons for problem are, 1) Low on Freon 2) Possibly low side of Line set incorrectly wrapped which causes freezing on the line and during defrost cycle the fan in the head blows out the water causing a puddle on the floor 3) possible bad pump in the AC Mini Split head which will be replaced by the manufacturer. Daikin has a 12 year warranty and 1 year guarantee on labor.”

Investigator’s Observation: This allegation is verified.

Unit 1: located in dining room area I observed condensation dripping out of wall unit. I observed visible condensation on copper pipe which was not wrapped with tape per manufacture instruction.

Unit 2: located in living room area, I observed the white drainage tube had whole in tubing which caused water to drip out of the front right bottom of unit.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Simpson was notified no corrective work had been performed.

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.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(17); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on November 19, 2021. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A November 8, 2021 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on November 19, 2021.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Simpson testified that he had issued two letters to Respondent regarding the elements of a contract and contracting while suspended. Investigator Simpson stated that Respondent’s license was suspended when Respondent installed the units at issue in this project. Investigator Simpson indicated that he had not had any communication from Respondent throughout this process.

Complainant testified the units were installed when the weather was cooler and he did not discover the issues until the units were operating in the summer. Complainant stated that he had reached out to Respondent on multiple occasions without success.

Administrative notice is taken of Respondent’s prior License record on December 9, 2021. Such prior License record reflects that Respondent’s License No. 321218 was first issued on August 9, 2018, and was suspended on September 7, 2021, for lack of bond. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s administratively suspended license does not deprive Complainant of his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C).

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 Vazanno 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 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) and (B).

The evidence established that Respondent did not provide Complainant with a contract including the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, the Registrar established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s license was suspended during the installation of the units at issue in this matter. Therefore, Complainant established that Respondent engaged in contracting when its license was suspended in violation of A.R.S. § 32-1154(A)(17).

The evidence established that Respondent did not attempt to complete the corrective work following the 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. 321218 for a period of five 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)(5), 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 40 days from the date of that certification.

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-137160-45720000Done this day, December 9, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000