ALJDEC decisions subject to certification as final

2021A-05673-CHC-ROC · Registrar of Contractors · 2022-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Hohn,

COMPLAINANT,

v.

Tucson Refrigeration Controls, LLC,

License No. ROC 304275,

RESPONDENT.

No. 2021A-05673-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2022 with the record held open until March 22, 2022.

APPEARANCES: Complainant John Hohn appeared on behalf of himself. Miguel Estrada appeared on behalf of Respondent Tucson Refrigeration Controls, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Tucson Refrigeration Controls, LLC (Tucson Refrigeration) holds license number 304275 issued by the Registrar of Contractors (ROC).

2. Miguel Estrada is the owner of Tucson Refrigeration.

3. Tucson Refrigeration agreed to install a new air conditioning unit at

Mr. Hohn’s residence.

4. Mr. Estrada paid for a permit for the installation of the air conditioning unit from Pima County.

5. Pima County conducted two inspections required for the permit. Tucson Refrigeration failed both inspections. See the ROC’s Administrative Record, pg. 24.

6. On or about November 8, 2021, Mr. Hohn filed a complaint with the ROC alleging poor work on the part of Tucson Refrigeration.

7. On December 13, 2021, ROC Investigator Arlo Houston conducted a job-site inspection.

8. On December 14, 2021, the ROC issued a Directive to Tucson Refrigeration. The Directive was mailed to Tucson Refrigeration’s current mailing address. The Directive provided, in relevant 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 January 4, 2022.

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 reasons1, 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.

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

Compliance Item: 1 - "TRC turned in a falsified manual j report. The resulted in an over sized AC installment (improper installment)"

Investigator’s Observation: Verified. Pima County Development Services has determined that work performed by respondent failed their building permit required inspections: reference Pima County Electrical/Mechanical Permit P21BP07372.

Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.

9. Tucson Refrigeration did not correct the items listed in the Directive by January 4, 2022.

10. On January 13, 2022, the ROC issued a Citation against Tucson Refrigeration’s license for alleged violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(2)(b), 32-1154(A)(3), Arizona Administrative Code (A.A.C.) R4-9-108(a), and A.R.S. § 32-1154(A)(22).

11. Tucson Refrigeration filed a timely answer to the Citation.

12. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

13. A hearing was held on March 8, 2022.

14. At hearing, Mr. Hohn testified on behalf of himself. Mr. Estrada testified on behalf of Tucson Refrigeration. Investigator Houston testified regarding his investigation of the complaint.

15. Mr. Hohn testified to the effect that Tucson Refrigeration performed poor work during the air conditioning unit installation. Mr. Hohn alleged that Tucson Refrigeration submitted a false Manual J to Pima County.

16. Mr. Estrada stated that he hired another company that was certified to prepare the Manual J. Mr. Estrada stated that he was not involved in the preparation of the report. Mr. Estrada stated that after the inspections failed, an additional inspection was not performed because Mr. Hohn would not allow it.

17. Mr. Estrada was unable to recall whether he received the Directive.

Mr. Estrada remarked that he has a “lot of paperwork.” During his closing argument,

Mr. Estrada stated that Mr. Hohn denied access to Tucson Refrigeration based on the dates that he had “allowance on the ROC timing.” However Tucson Refrigeration provided no evidence to establish that Mr. Hohn denied access to his property from December 14, 2021 to January 4, 2022.

18. Administrative notice is taken of the ROC’s public website. According to the information available on the website on April 11, 2022, Tucson Refrigeration’s license was first issued on July 5, 2016, and is active. Such prior License record also shows that there is only one open complaint against Tucson Refrigeration, and that one complaint has resulted in discipline against Tucson Refrigeration’s license.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The preponderance of the evidence shows that Respondent failed to pass the required inspection, which is a violation of A.R.S. § 32-1154(A)(2)(b).

6. The preponderance of the evidence shows that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

7. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s Directive without valid justification, which is a 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 ROC shall suspend License No. ROC 304275, held by Tucson Refrigeration Controls, LLC, for one day.

It is further recommended that the ROC 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 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. Done this day, April 11, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: Miranda Alvarez

Legal Secretary