ALJDEC - Licensing
2022A-06403-CHC-ROC · Registrar of Contractors · 2023-04-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mario Cordova,
COMPLAINANT
v.
Manny's Air LLC
License No. ROC 228714,
RESPONDENT
No. 2022A-06403-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 7, 2023
APPEARANCES: Complainant Mario Cordova appeared on his own behalf. Manuel Maynez, Owner and Qualifying Party, appeared on behalf of Respondent Manny’s Air LLC.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
Manny’s Air LLC (Respondent) is the holder of License No. 228714 issued by the Arizona Registrar of Contractors (Registrar).
On or about October 18, 2021, Mario Cordova (Complainant) entered into a contract with Respondent for the installation of a HVAC unit on her property.
On or about August 2, 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 Jack Grimm. After a jobsite inspection on September 6, 2022, Investigator Grimm 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 September 29, 2022.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item #1: A complaint for non-permit we have received a letter form the city for non-permitted. We have contacted Manny via phone and email and they have not responded.
Investigators Observation: Observed (2) two new separate HVAC units and ducting installed on the roof at 723 E Siesta Dr. Phoenix 85042 over units A and B. No permit is in place and the property owners have received notices from the Phoenix city building department that no permit was obtained for this work performed. The respondent was warned verbally and by warning letter on a previous complaint that the work required a permit and no action was taken.
*Obtain any required permits from the local code jurisdiction governing authority and obtain all required inspections and approvals.
Governing Rule: 32-1154(A)(2) Departure from or disregard of a building code of this state.
Complaint Item #4: This addendum was added by email prior to the scheduled inspection. - There are five openings for air ducts in each unit that water is coming through. This is causing extensive damage and possible mold in our walls. This has never been an issue in the past. It has only become an issue since the hired contractor failed to insulate the air ducts so they are exposed to the weather which is causing major damage to the units.
Investigators Observation: All equipment and duct work is located on the roof of the units with penetrations (5) each through the roof membrane. A water test was performed on several of the locations and all leaked with water showing at the interior of the units. There is no item in the contract regarding the insulation of the ducting. All this work and joints are exposed and should be sealed to prevent water intrusion. The expectation would be that the roof is sealed correctly at all locations where ducting and unit penetrations are located. These locations need to be sealed for long term reliability from water intrusion. A flat tin cover was over the roof holes cut with ducting through and exposed tar covering the edges. There is a specific way to seal these locations on modified bitumen roofing. This work is incorrectly and poorly done and is leaking. The leaking has also caused damage to the drywall ceiling in the units.
*Correct locations around the two units and ducting penetrations in roof membrane for long term reliability from water intrusion by appropriate means (modified bitumen roofing requirements) or as required by code jurisdiction. Repair any damaged drywall and repaint as needed.
Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.
Following the issuance of the written directive, Respondent performed some work on the project. After the deadline in the directive expired, Investigator Grimm conducted a compliance jobsite inspection.
At the compliance jobsite inspection on January 9, 2023, Investigator Grimm noted that a permit still had not been obtained on the project and the leaks had not been addressed. Investigator Grimm noted that Respondent was unable to obtain a permit because of previous work done on the property without a permit that needed to be addressed before the permit for this project could be issued.
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(A); and A.R.S. § 32-1154(A)(22).
Investigator Grimm testified at hearing that he did not conduct a prehearing inspection because it was his understanding that the roof had been repaired, but the permit still had not been obtained.
Complainant testified that the permit had been obtained and the leaking had been corrected. Complainant maintained there was still damage to the drywall inside the house that needed to be addressed by Respondent. Complainant stated that his mother signed the contract with Respondent and, had he been the one to handle the transaction, he would not have structured the contract as it was. Complainant acknowledged that, under the contract that was executed, he was responsible for installing the insulation on the ductwork.
Mr. Maynez testified that under the terms of the contract, Complainant was responsible for insulating the ductwork after the installation of the units. Mr. Maynez further maintained that two payments of the financing were waived to allow Complainant to have the funds necessary to complete the insulation. Mr.Maynez asserted that the damage to the drywall was the result of Complainant’s failure to install the insulation. Mr. Maynez stated that after Complainant completed the insulation, Respondent would repair the drywall.
Administrative notice is taken of Respondent’s prior License record on April 27, 2023. Such prior License record reflects that Respondent’s License No. 228714 was first issued on January 30, 2007, 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.
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 began the project prior to the issuance of a permit from the local building authority. While the permit was delayed after the written directive was issued because of other unpermitted work on the property, Respondent wrongly began the project before those issues were resolved and a permit was issued. Therefore, Complainant established that Respondent departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).
The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Respondent later corrected the leaking and that had been resolved as of the hearing. To the extent the damage to the drywall was the result of Complainant’s failure to install the insulation as required under the contract, that damage was not the fault of Respondent. With respect to the leaking, 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 complete the corrective work following the Directive being issued before the deadline in the directive expired. 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. 228714 for a period of one day.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, April 28, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Martín Quezada, Director
Registrar of Contractors
Manny's Air LLC
[email redacted]
Jack Grimm
[email redacted]
Mario Cordova
[email redacted]
By: OAH Staff