ALJDEC decisions subject to certification as final

2022A-03079-CHC-ROC · Registrar of Contractors · 2022-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Leonnesia Herd,

COMPLAINANT

Arrowhead Aire LLC

License No. ROC 295037,

RESPONDENT

No. 2022A-03079-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2022

APPEARANCES: Complainant Leonnesia Herd appeared on her own behalf. Respondent Arrowhead Aire LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Arrowhead Aire LLC (Respondent) is the holder of License No. 295037 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 31, 2020, Leonnesia Herd (Complainant) entered into a contract with Respondent for the replacement of two air conditioning units and two gas furnaces for a total price of $13,500.00.

In July 2021, Respondent performed some repair work on the copper line for the air conditioning unit.

On or about April 15, 2022, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project. The Registrar assigned the complaint to Investigator John Peru.

In the Complaint, Complainant stated that she hired another contractor to perform repairs on the air conditioning because it was not working properly.

On or about April 22, 2022, Investigator Peru closed the complaint because the work had been subject to alteration by others.

Complainant requested that the complaint be reopened and indicated that the repair work performed by Respondent was not altered by the other contractor.

On or about June 21, 2022, Investigator Peru issued a Jobsite Inspection Notice to the parties indicating that the complaint had been reopened and a jobsite inspection would be conducted on June 28, 2022.

After the jobsite inspection, Investigator Peru 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 July 15, 2022.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "08/03/2020 Initial install was not done correctly which caused A/C not to cool within 11 months after initial install.

07/07/2021 Copper line was repaired as the alleged cause of the cooling issue, but the A/C still never worked properly after the copper line repair.

04/05/2022 A/C will not cool and called/texted/Facebook messaged contractor 04/07 through 04/14/2022 to report failure to cool issue, but received no response. Inspected by another contractor 04/13/2022 who reported poor workmanship in welding of copper pipe is allowing leakage and estimated cost to repair copper line and refill with 7+ pounds of Freon is $1000+. . . .

Investigator’s Observation: Verified.

At the time of this Inspection, the Upstairs AC Unit does not operate properly. The Respondent Installed the Unit on 08/03/2020. The Unit was not working properly, and the Respondent was called out to diagnose the problem. On 07/07/2021, the Respondent stated that there was a kink on the Suction Line behind the Exterior Wall going into the House. The Respondent made the necessary repairs, however the Complainant notified the Respondent on 07/14/2021 that the Upstairs Unit was not cooling properly. The Respondent has not attempted to inspect/ repair the Item of Concern.

Does Not Meet Workmanship Standards, correct by appropriate means.

Governing Rule: 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.

Following the issuance of the written directive, Respondent did not attempt to contact Complainant. After the deadline in the directive expired, Investigator Peru 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); 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 October 4, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A September 28, 2022 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 October 4, 2022.

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 Peru testified that during the jobsite inspection he observed the issue identified in the written directive was not a new repair and appeared to be at least a year old.

Complainant testified that from the time Respondent installed the air conditioning units, they did not cool properly. Complainant reported the issues to Respondent on multiple occasions, but Respondent told her it just took that long for the unit to cool. Complainant asserted that she had missed parenting time with her children because it was too hot for them to sleep in her house. Complainant stated she had not heard from Respondent since July 2021.

Administrative notice is taken of Respondent’s prior License record on October 24, 2022. Such prior License record reflects that Respondent’s License No. 295037 was first issued on October 20, 2014, and is active. 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.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

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 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 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. 295037 for a period of ten 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.

-54864001

001

-137160-45720000Done this day, October 24, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary