ALJDEC decisions subject to certification as final

2021A-03631-CHC-ROC · Registrar of Contractors · 2022-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lisa Ann Wilcox,

COMPLAINANT

Hee Man Moon

DBA: H M Moon,

License No. ROC 180853,

RESPONDENT

No. 2021A-03631-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 8, 2022

APPEARANCES: Complainant Lisa Ann Wilcox appeared via Google Meet. Respondent Hee Man Moon appeared on his own behalf. Registrar of Contractors Investigator Doug Barrett appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Heen Man Moon (Respondent) is the holder of License No. 180853 issued by the Arizona Registrar of Contractors (Registrar).

On or about April 8, 2021, Lisa Ann Wilcox (Complainant) signed a contract with Respondent for installation of a new air conditioning unit. The contract amount was for $5,580.00

On or about August 2, 2021, the Registrar received a Complaint containing one item against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Doug Barrett. The jobsite inspection was performed on August 26, 2021. Also on that same day, the Registrar issued a dismissal letter stating that there was insufficient evidence to issue a citation.

On or about September 27, 2021, the Complaint was reopened and a jobsite inspection was held on October 5, 2021.

Investigator Barrett then issued a written directive on or about October 6, 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 11-10-2021.

. . .

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

Compliance Item: 1 - Contractor installed a/c unit and it did not work properly. He blamed it on the thermostat. Thermostat was working correctly so he blamed it on the thermostat wire. Purchased new wire a d he returned to install it. He drilled into the roof to do so. First rain and now have a roof leak causing damage to ceiling and filling a bucket in interior of home. Prior to thermostat wire being replaced, another contractor found that he had left exposed wiring that would potentially short if moisture were to reach.

Investigator’s Observation: Verified. I observed a spot in the attic that appears to have moisture staining from a leak below the roof jack for the air conditioner. The complainant showed me a video of water leaking at this very spot. I observed torn sealant around the roof jack for the air conditioning unit where the new unit was installed. I also observed moisture staining on the ceiling in the living room which is directly below the roof mounted air conditioning unit. Respondent said he did not touch the roof jack but installed the new unit to the roof jack. Respondent stated he could seal the area of concern. Contractor shall make repairs by appropriate means to include incidental damage to the ceiling caused by the initial install.

Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule

R4-9-108

(All errors contained in the original)

A Compliance Jobsite Inspection was performed on November 15, 2021.

On November 18, 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).

On or December 3, 2021, Respondent e-mailed an Answer to the Registrar, stating that he was unable to verify the source of the leak and that he did not perform and work in the area where the leak occurred.

On or about December 27, 2021, a Notice of Hearing was issued setting a hearing on February 8, 2022 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Barrett testified as to his involvement and the above timeline.

Investigator Barrett testified the new unit and duct elbow was right where the leak occurred and he observed old cracked tar material.

Investigator Barrett also testified that Complainant hired a separate contractor to replace the shingled section of the roof where the air conditioning unit sat. Because of this, he testified that the workmanship complaint was now resolved but for the requirement for Respondent to repair the ceiling in the living room.

Complainant testified on her own behalf and called Daniel Wilcox as a witness. She also submitted 11 exhibits into evidence.

Complainant testified that initially there was a problem with the thermostats and that Respondent re-wired the thermostats at the end of June. After the wiring issue was resolved, there were no further issues until the rains came about a month later.

Complainant testified that after the first hard rain, she noticed water dripping from the ceiling where the air conditioning unit was installed. She testified further that her son did his best to patch the areas he could see.

Next, Complainant testified that towards the end of September, water began leaking from the ceiling once again. She testified that her son went to the attic and took video of the leak coming from underneath where the air conditioning unit sat. She then contacted the Registrar, which led to the complaint being reopened.

Complainant also testified that she hired Porter Roofing on November 1, 2021, to repair the shingled area of the roof.

Complainant testified that Respondent sent an unlicensed contractor to provide an estimate for the ceiling damage. However, she refused to have an unlicensed contractor perform the work.

Daniel Wilcox testified that on July 31, 2021, he went onto the roof to take pictures to try to determine where the leak was coming from. He stated that he saw a wire with about a quart-sized hole going through the roof.

In addition, Mr. Wilcox testified that when the leaking began again, he went to the attic and took a video of the rain coming in.

Mr. Wilcox also testified as to the water staining which occurred on the living room ceiling and that this area corresponded to the area underneath the air conditioning unit.

Finally, Mr. Wilcox testified that they received a quote from Lotus Restoration Services for $2,000.00 to repair the living room ceiling.

Respondent testified that he installed thousands of air conditioning units in his 30 years of work, and no one has accused him of bad work.

Respondent testified that there may have been a wiring problem, but that was resolved. He further testified that there needed to be some space between the wire, however, it was almost impossible for water to get in.

Respondent testified that he believed that the leak was a ruptured sewer line, and not the air conditioning unit.

Respondent testified further, that he did not install the roof jack, rather he replaced the elbow unit. He also testified that the black tar does not stick to a roof jack. Respondent testified that he did not touch the existing black tar.

Respondent testified that when looking at Picture 10 from the initial jobsite inspection on August 26, 2021, the leak was coming from where the electrical wire was against the roof tile. He believed that he did not even go to that area during his installation.

Finally as to the ceiling damage, Respondent testified that while he was very certain his work did not cause the leak, he sent an unlicensed contractor to provide an estimate. Although the contractor was not licensed, he trusted the work, and given the contractor shortage, it was the best person he could find.

Administrative notice is taken of Respondent’s prior License record on February 22, 2022. Such prior License record reflects that Respondent’s License No. 180853 was first issued on December 8, 2022, and reflects that there is 1 open complaint, namely the present complaint.

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 did not establish that Respondent’s work was not in conformity with the Registrar’s standards. Respondent testified credibly that he did not install the roof jack where the leak was emanating from. Investigator Barrett noted the same in his written directive. Further, while there may have been torn sealant around the roof jack, which could have been because of normal wear and tear as Respondent testified that that would not be the proper way to seal the jack to the roof.

Finally, in his testimony, Investigator Barrett testified that there was no workmanship issue any longer because another company, Porter Roofing, had repaired the shingled section of the roof. Also, the tribunal notes that Porter Roofing performed work on the roof prior to the directive expiring. Thus, the tribunal believes that the citation should not even have been issued under A.R.S. § 32-1155(D)(2). As such there should be no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint in 2021-03631.

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.

-54864001

001

-137160-45720000Done this day, February 22, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000