ALJDEC decisions subject to certification as final

2022A-05394-RFA-LS-ROC · Registrar of Contractors · 2023-10-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fred Gonzalez,

COMPLAINANT

ALLTECH Solutions Inc.

License No. ROC 296000,

RESPONDENT

No. 2022A-05394-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2023

APPEARANCES: Complainant Fred Gonzalez appeared via Google Meet on his own behalf. Keith Kessler, Owner and Operator, appeared via Google Meet on behalf of Respondent ALLTECH Solutions Inc. Arizona Assistant Attorney General, Mona Baskin appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 296000 to Respondent.

On or about July 5, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the installation of the HVAC unit.

As a result of the workmanship complaint, on September 13, 2022, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her March 13, 2023 Decision, Administrative Law Judge Sondra J. Vanella considered Respondent’s arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22) because the work was not in conformity with the Registrar’s standards, the work failed to pass the City of Winslow inspection, and Respondent did not compete the required corrective work once the Written Directive was issued.

On March 2023, the Registrar issued a Final Administrative Decision and Order finding violations and imposing a five day suspension and a $500.00 civil penalty.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $10,450.00. Respondent timely requested a hearing on or about August 14, 2023. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on October 16, 2023.

Hearing Evidence

The Directive from the Registrar specified that:

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 26, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Incorrect work done

Investigator’s Observation: There is inadequate airflow through most of the vents. The ducting has air leaks at connections. "Y" connectors used when not needed. There is a hole in return air not sealed properly. Failed building inspection.

Respondent shall correct in an appropriate manner and pass building inspection

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.

Compliance Item: 3 - Over cut vent holes

Investigator’s Observation: Vent holes in ceiling were cut to big.

Damage to ceiling.

Respondent shall correct in an appropriate manner.

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.

Compliance Item: 5 - exposed wire on unit

Investigator’s Observation: Thermostat wire exposed to elements.

Failed building department inspection.

Respondent shall correct in an appropriate manner and pass inspection.

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.

Compliance Item: 7 - Warranty and owner’s manual not provided.

Investigator’s Observation: Respondent shall provide the Complainant will all documentation the came with the unit.

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.

Shaquira Adebule, was a Legal Assistant II for the Registrar, and reviewed Complainant’s Recovery Fund claim. Ms. Adebule testified that she reviewed the Directive from the Registrar that had been issued, Judge Vanella’s Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Adebule testified that while Complainant had supplied only one bid initially, she requested that Complainant supply an additional bid. The two bids were as follows: AZ Electric in the amount of $10,450.00, and Executive Heating & Air Conditioning in the amount of $13,794.09. Ms. Adebule testified that she had Chris Allison, the Investigator in the underlying action, review the bids to help determine if the bids were sufficient to correct the work. Ms. Adebule testified that while Mr. Allison said both bids appeared to be “pretty much identical”, he opined that the lesser bid was acceptable.

In addition, Ms. Adebule testified that Complainant had met the requirements for a Recovery Fund payout because he owned the property and lived in the same, which she verified this through review of the Deed and the Navajo County Assessor’s Office records. Further, Ms. Adebule testified that Complainant had requested a payout from Respondent’s bond company, however he was denied the same.

Based upon all of the information, Ms. Adebule concluded that a payout from the Recovery Fund in the amount of $10,450.00 was appropriate, and issued the Notice of Administrative Award accordingly.

Keith Kessler testified on behalf of Respondent and he vehemently denied that the two bids used were comparable as the unit he contracted for was not a gas unit and the unit AZ Electric quoted was a 4 ton gas unit. Further, Mr. Kessler admitted that the unit installed was incorrect and had ordered a 4 ton unit but it was going to take 25-30 weeks to arrive. Mr. Kessler also testified that he believed both quotes provided by Complainant were excessive, and that a gas unit could be $800.00-$1,000.00 more than a fully electric unit.

Fred Gonzalez testified that this process as a “nightmare” and Respondent made no attempts to repair. He did not take a position on the amount of the Award amount.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages: 1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.”

Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect 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.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent had an opportunity to install the replacement unit for Complainant and failed to do so following the written directive from the Registrar.

Respondent also failed to present any persuasive evidence as to how he determined the bids used by the Registrar to determine the amount of the award were too high and/or how it was not substantially similar to complete the repairs.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $10,450.00.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $10,450.00.

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.

-54864001

001

-137160-45720000Done this day, October 31, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Mona Baskin

[email redacted]

ALLTECH Solutions Inc

[email redacted]

Fred Gonzalez

[email redacted]

By: OAH Staff