2022A-07175-CHC-ROC-RHG Amended Notice of Hearing and Packet MAILED

2022A-07175-CHC-ROC-RHG · Registrar of Contractors · 2023-08-30

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Eric Wagner , Case No. 2022-07175 COMPLAINANT, Docket No. 2022A-07175-CHC-ROC- RH v. D and H Air Conditioning Company Inc AMENDED NOTICE OF HEARING DBA: D & H Air Conditioning & Heating ON CONTESTED CASE Company License No. ROC 070188,

RESPONDENT.

This Notice of Hearing is issued under A.R.S. § 41-1092.05(D). HEARING INFORMATION The hearing is set for: September 27, 2023 9:00 AM Jenna Clark Google Meet. A link will be provided directly from The Office of Administrative Hearings. Go to www.azoah.com to request to appear in-person.

If you have requested to appear in-person at the hearing, the hearing will be held at 1740 W Adams Street, Phoenix, AZ 85007.

You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.

STATEMENT OF LEGAL AUTHORITY AND JURISDICTION The State of Arizona has determined that the licensing and regulation of construction

contractors is a proper state function, and has vested authority in the Registrar of Contractors

to administer Title 32, Chapter 10 of the Arizona Revised Statutes. A.R.S. §§ 32-1101 et seq.

All hearings for alleged violations of Title 32, Chapter 10 are conducted under Title 41,

Chapter 6, Article 10. A.R.S. § 32-1156.

The statutes and rules governing the hearing can be found at: Arizona Revised

Statutes §§ 41-1092 to -1092.12, and Arizona Administrative Code R2-19-101 to -122.

PARTICULAR ARIZONA STATUTES AND RULES INVOLVED The statutes and rules the Respondent is alleged to have violated are cited in the

complaint and citation, which were served on the Respondent on March 10, 2023.

SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED The complaint and citation allege that the Respondent committed the following act(s):

Charge: 1 A.R.S. § 32-1154(A)(2)(b) Charge: 2 A.R.S. § 32-1154(A)(3) - R4-9-108(a) Charge: 3 A.R.S. § 32-1154(A)(3) - R4-9-108(b) Charge: 4 A.R.S. § 32-1154(A)(22)

THE PARTIES TO THE ADMINISTRATIVE HEARING Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing.

Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge. The Registrar’s assigned investigator will appear as a witness at the hearing. RIGHT TO BE REPRESENTED The parties to the administrative hearing may choose to be represented by an attorney. A.R.S. § 41-1092.07(B). If one of the parties is a company, the company may be represented by an officer or employee if that person satisfies the conditions set forth in A.R.S. § 32- 1156(B). CHANGE OF ADDRESS Each party must inform the Registrar and the Office of Administrative Hearings of any change of address within five (5) days of the change. A.R.S. § 41-1092.04. HEARING PROCEDURES AND RULES The administrative hearing will be conducted in accordance with A.R.S. §§ 41-1092 to -1092.12, and A.A.C. R2-19-101 to -122. The parties should review the statutes, rules, and processes governing the administrative hearing. Copies of the statutes, rules, and articles regarding the administrative hearing process can be found at https://www.azoah.com/.

REGISTRAR’S APPEARANCE BY VIDEO CONFERENCE OR TELEPHONE

The Registrar’s investigators, employees, and attorneys will appear at the hearing via

video conference or telephone unless requested by a party to appear in-person. Requests for

the Registrar’s investigators, employees, or attorneys to appear in-person must be filed with

the Registrar and the Office of Administrative Hearings no later than seven (7) calendar days

prior to the hearing date.

HEARING PACKET In the interests of administrative efficiency, the Registrar compiles and discloses

certain documents to the parties and the Office of Administrative Hearings. These documents are attached to this Notice of Hearing as the “Hearing Packet.” If any party wishes to submit

additional evidence, they must do so during the hearing after completing a disclosure statement. See “Disclosure Statement” section below.

SUBPOENAS FOR TESTIMONY FROM A WITNESS OR DOCUMENTS

The parties to the hearing must be prepared to present evidence in support of their

case. If a party wants to obtain testimony from a witness or documents not in the party’s

possession, the party must prepare and file a written subpoena for the Administrative Law

Judge to review and sign, if approved. A.R.S. § 41-1092.07(C). Forms for requesting a

subpoena can be found on the Office of Administrative Hearings’ website at www.azoah.com.

The party seeking a subpoena must serve notice on all the parties to the hearing, and on the

Registrar. A.R.S. § 41-1092.04.

DISCLOSURE STATEMENT At least seven calendar days before the hearing, each party must prepare and serve a

disclosure statement on all other parties, and file it with the Office of Administrative Hearings.

A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the

party will use at the hearing. A party’s failure to timely disclose any witness or exhibit,

without good cause, may result in the administrative law judge excluding those witnesses or

exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is

available on the Registrar’s website at https://roc.az.gov/content/prehearing-disclosure-

statement.

CHANGING THE HEARING DATE The date of the hearing may only be advanced or delayed on the agreement of the parties or on a showing of good cause. A.R.S. § 41-1092.05(C). The date of the hearing may be changed by filing a written agreement of the parties to change the date of the hearing. The written agreement must be filed with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmitted to the Registrar and all other parties. The

assigned Administrative Law Judge may be found on the Office of Administrative Hearings’ web portal at www.azoah.com If a party would like to move the date of the hearing without agreement of all parties, the party must file a written motion with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmit a copy to the Registrar and all other parties. The motion must state in detail good cause for why the date of the hearing should be advanced or delayed, and the position of all other parties regarding the advancement or delay. A party may also file a motion asserting a right to an expedited hearing upon a showing of extraordinary circumstances or the possibility of irreparable harm. A.R.S. § 41-1092.05(E).

RESOLUTION SHORT OF ADJUDICATION

In any case which is resolved or settled by the parties, or which is withdrawn by the

Complainant without objection from Respondent after the Notice of Hearing is issued, the

parties must notify the Office of Administrative Hearings of the resolution or settlement. Any

such cases will be listed on the Registrar’s website and its records under the category: “Closed

Complaints – Resolved/Settled/Withdrawn.”

Dated August 28, 2023.

By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail August 28, 2023 to: Respondent(s) D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682 Evan L. Thompson, Esq. 3430 E Sunrise Dr Ste 110 Tucson, AZ 85718

Complainant(s) Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Case No. 2022-07175 /

Katie Hobbs, Governor Martin Quezada, Director

Hearing Packet FAQ What is the Hearing Packet?

The Hearing Packet is a packet of certain documents collected or issued by the Registrar over the course of its investigation.

Who gets the Hearing Packet?

The Hearing Packet is assembled and distributed to all parties and to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing.

What types of cases does the Registrar prepare a Hearing Packet for?

The Registrar prepares a Hearing Packet for Complainant-Handled Cases and No-Pay Cases. Note: If the Docket Number on the Notice of Hearing contains a “CHC” or “NPC”, your case is a Complainant-Handled Case or a No-Pay Case.

What is in the Hearing Packet?

The Hearing Packet contains essential case-specific documents and at a minimum will include the following documents:

● Original complaint;

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

Katie Hobbs, Governor Martin Quezada, Director

● Citation; and ● Answer.

The Hearing Packet will also contain the following documents (if applicable):

● Jobsite inspection notices, notes, and photos; ● Written directives; and ● Compliance inspection notices, notes, and photos.

What if there are documents missing from the Hearing Packet?

If there is any evidence you submitted to the Registrar that are not included in the Hearing Packet it is your responsibility to introduce that evidence at the administrative hearing. Note: The administrative law judge assigned to your case does not have access to the entire Registrar record.

If there is additional evidence you submitted to the Registrar during the investigation that you also want to introduce as evidence during your hearing, it is your responsibility to:

● Properly disclose that evidence to the other party; and ● Introduce the evidence during your hearing.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

Katie Hobbs, Governor Martin Quezada, Director

How do I disclose evidence I intend to use at a Hearing?

You must properly disclose any and all documents and witnesses you intend to use at your hearing according to the Registrar’s Prehearing Disclosure Rules. See Arizona Administrative Code Section R4-9-118.

A sample prehearing disclosure form and instructions are provided to the parties by the Registrar.

How do I obtain documents I previously submitted to the Registrar?

If you previously submitted documents to the Registrar and need a copy of these documents, please contact the Registrar’s Legal Department or submit a public records request at https://roc.force.com/AZRoc/s/roc-public-request.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

Complainant: Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C008 05/21 Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

Respondent: D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682

September 6, 2022

Jobsite Inspection Notice Re: Complaint Number 2022-07175

Dear Complainant and Respondent:

A formal complaint has been filed with the Arizona Registrar of Contractors.

A jobsite inspection is scheduled for September 19, 2022 at 12:30 PM. The Complainant is required to be present. The Respondent’s attendance is requested and encouraged. The Registrar encourages both parties to make a good faith effort to resolve this complaint prior to the jobsite inspection.

COMPLAINANT: 1. Under A.R.S. § 32-1155(D)(1), the Respondent must be allowed, upon request, the opportunity to inspect the work complained of within fifteen (15) days of receiving this notice. If Respondent is not provided an opportunity to inspect the work within the fifteen (15) day time period, the Registrar may be prohibited from taking further action on this complaint. 2. The Registrar may also be precluded from taking further action on this complaint, if the work that is the subject of the complaint is subject to neglect, modification, or abnormal use. A.R.S. § 32-1155(D)(2) 3. You must provide safe access to any area to be inspected. If access to a roof or other elevated area is required, you must provide a means to safely access the area (ladder or manlift as appropriate). Additionally, please secure any animals.

RESPONDENT: 1. Enclosed is a copy of the complaint. Under A.R.S. § 32-1155(D) you must be allowed, upon request, the opportunity to inspect the work complained of within fifteen days of the date of receipt of this notice. 2. To assist the assigned investigator in evaluating the merits of the complaint, please submit a response to the enclosed complaint to the assigned investigator prior to the scheduled inspection. 3. If you do not attend the jobsite inspection, your absence may negatively impact the investigation, and your interests. 4. If a building permit(s) was required for this project, please have the building permit information available at the jobsite inspection. If either party needs to reschedule the jobsite inspection, please notify the assigned investigator at least three business days prior to the inspection date to schedule a new date and time. 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C008 05/21 Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

If the parties resolve the complaint prior to the inspection, please notify the assigned investigator in writing and by phone as soon as possible.

Sincerely, John Smith John Smith, Investigator #194 (520) 483-0027 [email redacted] 1700 W Washington St,Suite 105 Phoenix, Arizona 85007-2812

A Guide to Jobsite Inspections

Purpose of the Jobsite Inspection When the Registrar receives a complaint against a contractor’s license alleging poor workmanship, the Registrar generally schedules a Jobsite Inspection. The Jobsite Inspection serves two purposes: 1. To give the contractor an opportunity to inspect the complaint items; and 2. To give the Registrar an opportunity to determine if the contractor’s work violates Arizona law.

Jobsite Inspection Rights and Responsibilities Access to inspect: The property owner has complete control over who they allow on the property. However, if the Registrar’s investigator or the contractor cannot inspect the work, the Registrar will not move forward with a citation.

Cooperation: Arizona law enables injured parties to seek relief for damages through several paths. When dealing with a licensed contractor, the Registrar of Contractors’ administrative complaint process may serve as one of those possible paths. However, in order to use that path, the Registrar relies on the cooperation of all parties to a complaint.

Minimum workmanship: The Registrar investigates workmanship complaints for compliance with minimum workmanship and professional industry standards. The Registrar does not issue citations for work that meets these standards.

Scope: The scope of the Jobsite Inspection is limited to items listed in the complaint filed with the Registrar’s office. It is the complainant’s responsibility to point out the complaint item(s) and the Investigators role to review the item(s). If the complainant identifies additional workmanship items not listed in the original complaint, they must file an addendum to the complaint. The Registrar’s Investigator may identify additional administrative violations by the contractor (e.g. work performed out of scope of the license and failure to provide a contract that meets requirements set by Arizona law) at the time of the inspection.

The Role of the Investigator At the Jobsite Inspection, the Registrar’s investigator will: ● Only investigate the items listed on the complaint form filed with the Registrar. ● Will gather evidence to make an informed decision about the complaint items.

What to expect after a Jobsite Inspection After doing a Jobsite Inspection, the Registrar’s Investigator will leave the jobsite and review the evidence provided during the inspection. Generally, the investigator does not make any determination at the time of the jobsite inspection regarding whether the allegations listed in the complaint are supported. ● If the allegations are confirmed, the Registrar’s Investigator may issue a Written Directive telling the contractor to correct the poor or incomplete work. ● If the allegations are not confirmed, the Registrar’s Investigator will close the complaint.

Questions? If you have already filed a complaint and it was assigned to an investigator, you are encouraged to contact that investigator directly with the information listed in your jobsite inspection letter. If you have not filed a complaint yet or have not been assigned an investigator, you can reach the Registrar’s compliance department at (877) 692-9762.

A Guide to Written Directives Purpose of the Jobsite Inspection When the Registrar receives a complaint against a contractor’s license, the Registrar generally schedules a Jobsite Inspection. The Jobsite Inspection serves two purposes: 1. To give the contractor an opportunity to inspect the complaint items; and 2. To give the Registrar an opportunity to determine if the contractor’s work violates Arizona law.

What to expect after a Jobsite Inspection After doing a Jobsite Inspection, the Registrar’s Investigator will determine whether the allegations listed in the complaint are supported. ● If the allegations are confirmed, the Registrar’s Investigator may issue a Written Directive telling the contractor to correct the poor or incomplete work. ● If the allegations are not confirmed, the Registrar’s Investigator will close the complaint.

Written Directives Access: In order to use the administrative process offered by the Registrar, a property owner must provide reasonable access to allow the contractor to fix their work as directed by the Registrar in a Written Directive. Complainants may not put any additional, unnecessary restrictions on the Respondent above and beyond the initial contract requirements agreed upon at the beginning of the project. Respondents are required to make repairs on items identified on any Written Directive, not otherwise restricted by local code or HOA limitations. Complainants must make access available to the Respondent to make the required repairs and failure to provide reasonable access may result in the Registrar dismissing the complaint.

Contractor obligations: The Written Directive will set a deadline for compliance. This is the period of time determined by the Investigator as necessary to complete the items listed in the Directive. ● The deadline for compliance assumes the contractor will promptly begin working on the items listed in the Directive. ● Do not wait. Both parties should communicate quickly to schedule the work.

Extensions: If good cause exists to extend this deadline, either party may submit a written request to the Investigator. The Registrar will review requests for extension and determine if the Directive should be extended.

Manner and method of performance: The Registrar does not provide specific instructions for how to correct poor work. A licensed contractor is expected to have the skill and professionalism to complete the work. Moreover, the complainant may not dictate the manner of repair. If the contractor fails to appropriately correct the work according to the contract, the Registrar will issue a citation.

Compliance Inspection: After the Written Directive expires, the Registrar’s Investigator will contact the complainant to determine if the contractor performed any corrective work. ● If the contractor did corrective work, the Investigator may schedule a Compliance Inspection to determine if the poor work is corrected. ● If the contractor did not perform any corrective work, the Registrar’s Investigator will not do a Compliance Inspection and will determine whether to issue a citation based on the administrative record.

Work performed after the directive ends: After the Directive period ends, a property owner may choose to allow the contractor to continue its work. The Registrar encourages parties to work cooperatively, but cannot require a homeowner to continue to allow a contractor access to the property after the Directive period ends in order for the administrative process to continue. Denying access after the Directive ends is not grounds to close or dismiss a complaint. 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C008 05/21 Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C008 05/21 Arizona Registrar of Contractors Jobsite Inspection Notes Case No.: 2022-07175 Investigator: John Smith #194 Inspection Date: 9/19/2022 Inspection Time: 12:30PM Address: 8760 N. Placita de Reynaga, Tucson, AZ 85704

Complainant: Eric Wagner Respondent: D and H Air Conditioning Company Inc DBA D and H Air Conditioning & Heating Company

Present for the complainant: Eric Wagner Present for the respondent: Phillip Robles, Scott Martindale Overview of project: This home did not previously have central refrigeration. This home previously had a central evaporative cooler. The evaporative cooler was removed. The contractor installed mini-split A/C units in multiple locations throughout the house. General Notes: This complaint was submitted in a narrative form. During this jobsite inspection, the complainant acknowledged all remaining/current workmanship items were addressed/discussed during this inspection.

Photos taken with agency issued Canon PowerShot ELPH180 and/or agency issued Google cell phone. Audio recorded with agency issued Olympus recorder and/or agency issued Google cell phone.

Front of complainant's property: Reference Pictures: 1-2

Complete narrative included on the complaint form: “2 trips after install to charge system with Freon. On 2nd trip, technician sniffed system and noted leaks at line connections in 3 out of 5 heads installed. 3rd trip was to repair all connections and vacuum system to ensure that there were no leaks.;

Master bedroom mini-split head inop on install day 4/30/2022. 5/12 tech came by and diagnosed compressor unit as defective. 5/12 a new compressor-condensing unit was ordered to replace the defective one. 5/17 I was informed that two boards were ordered to replace the ones on the defective condensing unit. 5/21 tech arrives to install boards, did not have the CPU grease needed to install, wipe doff what he could from old boards and installed. Still no startup. 5/28 techs replace condensing unit and run new communication cable, still no startup. 6/2 techs bring head from their shop used for training classes, connected it on the ground outside to test and it worked. The techs then remove the head in the M/bedroom and replace it with the one they brought. The cover was scratched from sliding around so they ordered a replacement for me. 6/10 the replacement cover was installed.;

4/30 line hides were not as described by salesman. The PVC pipe mounted to the exterior of our house looked hideous. Discussed this with Brian and Mike and the first thing they did was to paint the PVC pipe and brackets white. Still looked hideous. Finally came back to install line hide downwards to cover PVC piping. This is acceptable but every one is a different length and the two halves on each are different lengths also.;

The head unit in game room was leaking green water down our wall. Tech diagnosed it as a clogged condensate pipe and the liquid line was not covered with insulation tape.;

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Arizona Registrar of Contractors Jobsite Inspection Notes I noticed a hole/space in the roof where the lines run up to he condensing unit on the unit for the guest bedroom. I used caulking to fill the hole and inspected the other 4 adding minimal amounts to close a few gaps in the others.;

End of July beginning of august, M/Bedroom unit, I noticed water inning down the exterior of the brick wall around the line hide area. 8/18 Tech came by and diagnosed it as the condensate tube wasn’t connected to the condensate pipe. The tech tried a repair and for the moment it seemed to work. 8/19 I noticed the leak again, called D&H and they sent the same tech out that came out on 8/18 even though I told them that that tech did not have what he needed to repair. The tech stated that he would contact a person so that they would know the situation..;

8/22 at about 9 am, I called D&H to find out what was going on. They were to schedule the repair today. I discussed the previous information and said that’s they would make sure the tech coming today would have what he needs to complete the repair. Around 11 am I received a phone call stating that I would be next for repair. At 4 pm I called D&H to inquire where the tech was. They said that they were going to call me, the tech was running late on the other job. While that tech was waiting while the system was vacuumed, he called the tech from 8/18 and 8/19 to better understand what needed to be done. The tech for 8/202 repair said that he did not have what was needed to repair and that my repair would need to be rescheduled. I requested to speak to a manager, was told they all went into a meeting but the message was sent to call me. I have not received a call as of 8/23 12:50 pm. 8/23 techs arrive with needed material to repair problem. They are in the process now. The techs installed vinyl tubing and clamped it to the head unit condensate tube. Also mentioned that the repair from the previous tech looked good and that the water was actually coming from the uninsulated liquid line.”

Complaint Item 1: “…line hides were not as described by salesman. The PVC pipe mounted to the exterior of our house looked hideous…” Investigator’s Observations: Verified. Per the verbiage in the contract, the conduit installed for the line-sets, drains, electric, etc… is called “line hide”. The bottoms of the line hides are: • Cut at inconsistent and varying heights from the ground • Cut at inconsistent and varying heights in comparison to the backing plates • Cut at curves and angles Additionally: • The line hides are not plumb • The line hides are coming apart at the upper seams. The respondent also acknowledged and agreed to: • Strap unsecured wires to line sets • Replace vinyl tubing with 3/4 inch PVC Reference Pictures: 3-9 Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “…The head unit in game room was leaking green water down our wall.” Investigator’s Observations: Verified. The respondent acknowledged a previous fluid leak from this head unit. The respondent also acknowledged and agreed to: • Relocate the line set and line hide as needed to properly align with the head unit. • Repair or replace the front panel to eliminate the visible scuff marks Reference Pictures: 10 Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

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Arizona Registrar of Contractors Jobsite Inspection Notes

Complaint Item 3: “…I noticed a hole/space in the roof where the lines run…” Investigator’s Observations: Verified. The respondent acknowledged and agreed to: • Seal the roof as needed, seal holes in soffits and add soffit flares to cover holes visible from ground level. • Add reflective coating to all line sets run across the roof to fully coat and protect from UV exposure. Reference Pictures: 11 Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

From contract document(s) included with the submitted complaint: Task# DKN-MINI MXS 48000

Description DKN-MINI Split – MXS SERIES DUAL ZONE 48,000 18.9 SEER Model numbers: Outdoor: SMXS48TVJU INDOOR: FTXS18LVJU in kitchen/dining FTXS12LVJU in living/family room FTXS09LVJU in original master bedroom FTXS07LVJU in office FTXS07LVJU in secondary bedroom

Included power and copper line set from new outdoor heat pump on the roof to each indoor air handler, condensation drain line from each indoor air handler to outside ground and one new remote controller for each indoor air handler. All exposed power, copper line set and condensation drain line to be encased in line hide.

Price includes all equipment, materials, labor, taxes, and inspections.

From contract document(s) included with the submitted complaint: DKN-MINI LV 18,000 PRM Daikin Mini Split – LV Series 18,000 20.3 SEER Outdoor: RXS18LVJU Indoor: LTXS18LVJU

Installation Includes: New condensate pump and drainage. Manual J Load Calculation to ensure proper equipment sizing. All permits and inspections. New Thermostat properly connected to existing thermostat wire unless otherwise documented. Electric Whip Refrigerant line set RCC100 11/14

Arizona Registrar of Contractors Jobsite Inspection Notes If replacing an existing system then we will recover/evacuate refrigerant per EPA regulations. Refrigerant locking caps. D&H carries the necessary $2,000,000 liability insurance, Arizona State required workers compensation insurance, and all necessary municipal licensing.

Maintenance: One Follow-Up Maintenance Visit

Air Conditioning Purification: Ask about our other Indoor Air Quality Products

We will remove and recycle the existing equipment to be replaced.

Contract includes: “WORK INCLUDED WITH YOUR INSTALLATION…Acquire permits & inspections…”

ADDITIONAL VIOLATIONS In addition to the allegations in the complaint, the following violations were verified:

Warning Letter: Elements of a Contract. Investigator’s Observations: The respondent’s contract is missing the following information: • An estimated date of completion Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract. Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information: 1: The name of the contractor and the contractor's business address and license number. 2: The name and mailing address of the owner and the jobsite address or legal description. 3: The date the parties entered into the contract. 4: The estimated date of completion of all work to be performed under the contract. 5: A description of the work to be performed under the contract. 6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. 9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. 9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type... 9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

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Arizona Registrar of Contractors Jobsite Inspection Notes Warning Letter: Performing permit required work without a permit being obtained. Investigator’s Observations: This project included adding/installing mini-split air conditioning equipment to a home that previously did not have refrigeration cooling. The work included adding new electrical circuits to the two exterior condensing units. Additionally, a front exterior light fixture, including the electrical wiring, has been relocated. This work was performed without a permit being obtained. The contract documents include: “All permits and inspection” and “…Acquire permits & inspections…” Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code... Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards… REQUIRED CORRECTIVE ACTION: The Respondent is to obtain any and all required building permits from the Local Building Authorities, specifically the Town of Oro Valley. If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

RCC100 11/14

Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

Complainant: Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C009 04/21 Douglas A. Ducey, Governor Jeffrey L. Fleetham, Director

Respondent: D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682

September 28, 2022

License No. ROC 070188

Re: Complaint No. 2022-07175

WRITTEN DIRECTIVE FROM THE REGISTRAR

Dear Respondent:

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 October 19, 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 reasons 1, 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.

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

This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F).

• Strap unsecured wires to line sets • Replace vinyl tubing with 3/4 inch PVC Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “…The head unit in game room was leaking green water down our wall.” Investigator’s Observations: Verified. The respondent acknowledged a previous fluid leak from this head unit. The respondent also acknowledged and agreed to: • Relocate the line set and line hide as needed to properly align with the head unit. • Repair or replace the front panel to eliminate the visible scuff marks Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 3: “…I noticed a hole/space in the roof where the lines run…” Investigator’s Observations: Verified. The respondent acknowledged and agreed to: • Seal the roof as needed, seal holes in soffits and add soffit flares to cover holes visible from ground level. • Add reflective coating to all line sets run across the roof to fully coat and protect from UV exposure. Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

ADDITIONAL VIOLATIONS In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract. Investigator’s Observations: The respondent’s contract is missing the following information: • An estimated date of completion Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract. Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information: 1: The name of the contractor and the contractor's business address and license number. 2: The name and mailing address of the owner and the jobsite address or legal description. 3: The date the parties entered into the contract. 4: The estimated date of completion of all work to be performed under the contract. 5: A description of the work to be performed under the contract. 6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. 9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. 9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type... 9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Performing permit required work without a permit being obtained. Investigator’s Observations: This project included adding/installing mini-split air conditioning equipment to a home that previously did not have refrigeration cooling. The work included adding new electrical circuits to the two exterior condensing units. Additionally, a front exterior light fixture, including the electrical wiring, has been relocated. This work was performed without a permit being obtained. The contract documents include: “All permits and inspection” and “…Acquire permits & inspections…” Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code... Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes and professional industry standards… REQUIRED CORRECTIVE ACTION: The Respondent is to obtain any and all required building permits from the Local Building Authorities, specifically the Town of Oro Valley. If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.

Please direct all questions regarding this Directive to the undersigned Investigator.

Sincerely,

John Smith John Smith, Investigator #194 (520) 483-0027 [email redacted] 1700 W Washington St,Suite 105 Phoenix, Arizona 85007-2812

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C009 04/21 Katie Hobbs, Governor Martín Quezada, Director

Complainant: Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704

Respondent: D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682

Case No.: 2022-07175 Investigator: John Smith

Complainant: Eric Wagner

Respondent: D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company

Compliance Notes: In addition to correcting poor workmanship, the Directive did require the respondent obtain a building permit. The time required for the permitting process is somewhat beyond the respondent’s control; therefore, the respondent was initially allowed additional time to complete all required corrective actions. As of today’s date, March 3, 2023, the respondent has had 135 days to comply with the Directive As of today’s date, March 3, 2023, the respondent has not taken appropriate corrective action to comply with the Directive. The respondent’s lack of effort, and lack of communication, is not showing a good faith effort to comply with the Directive. Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter…

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov C013 4/21 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Eric Wagner, Case No. 2022-07175 COMPLAINANT, v. D and H Air Conditioning Company Inc., CITATION DBA: D & H Air Conditioning & Heating Company, License No. ROC 070188, and 076494 RESPONDENT.

The Registrar issues this Citation to D and H Air Conditioning Company Inc., DBA: D & H Air Conditioning & Heating Company, (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by March 25, 2023, then under A.R.S. § 32- 1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s). THE WRITTEN COMPLAINT On August 23, 2022, Eric Wagner, (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge :1 A.R.S. § 32-1154(A)(2)(b) Departure from or disregard of: (b) A building code of this state or any

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 political subdivision of this state in any material respect that is prejudicial to another. Charge :2 A.R.S. § 32-1154(A)(3) - R4-9-108(a) 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. Charge :3 A.R.S. § 32-1154(A)(3) - R4-9-108(b) Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity. Charge :4 A.R.S. § 32-1154(A)(22) Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32- 1154(E) and (F). FILING A WRITTEN ANSWER Respondent must appear by filing with the Registrar a written answer to the citation and complaint showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading “Written Answer to Citation and Complaint” and should include the case number, which is Case No. 2022-07175. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Fax: (602) 364-0416 Email: [email redacted] The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than March 25, 2023. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a deadline ten days after service of the Citation. Service of the Citation and Complaint is complete five days after the Registrar mails a copy of the Citation and Complaint to Respondent’s latest address of record in the Registrar’s office. Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s).

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). INVESTIGATOR’S APPEARANCE AS A WITNESS The Registrar’s assigned investigator will appear as a witness at the hearing. If either party demands the attendance at the hearing of any other person, that party must obtain and serve a subpoena in compliance with the rules and processes established by the Office of Administrative Hearings. RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41-1092.06(A). The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are inadmissible in the administrative hearing. A.R.S. § 41- 1092.06(B).

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. Dated March 10, 2023. By: /s/ Gail Mathews Gail Mathews Legal Assistant II Legal Department Arizona Registrar of Contractors COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, March 10, 2023 to: Respondent Certified Mail No: [number redacted]

D and H Air Conditioning Company Inc. DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 Copy mailed by USPS First Class mail this same date to: Respondent D and H Air Conditioning Company Inc. DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714-1682

Complainant Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2022-07175

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Lg101 8/21 Licensed Complaint Form Departmental Use Only For Current or Suspended Licensees

Person Filing Complaint Full Name (First Middle Last) Business Name (if a licensed contractor or supplier) ROC License Number(s) (if any)

Eric Wagner Mailing Address (Enter jobsite in Contract/Project section) City State Zip

8760 N Placita De Reynaga Oro Valley Arizona 85704 Phone Number Email

[number redacted] [email redacted] I consent to receive communications electronically in connection with this case Name of Attorney (if any)

Street Address of Attorney City State Zip

Phone Number of Attorney Email of Attorney

Contractor Information Name (as shown on contract/invoice) ROC License Number(s)

D and H Air Conditioning Company Inc ROC 070188 Street Address City State Zip

3990 S Evans Blvd Tucson AZ 85714-1682 Phone Number Email

[number redacted] Name of Person(s) Representing License

Brian Contract/Project Information Contract Date Contract Amount Amount Paid

April 30, 2022 $26,032.00 $26,032.00 Date Work Started Date Work Stopped Date Work Was Completed

April 30, 2022 June 13, 2022 June 13, 2022 Close of Escrow (New Home) Move-In Date (New-Home)

Jobsite Street Address City State Zip

8760 N Placita De Reynaga Oro Valley AZ 85704 Name of Construction Site Owner Construction Site Name (if applicable)

Phone Number of Construction Site Owner Email of Construction Site Owner

This complaint is for Poor Work;Other I have contacted the contractor by Phone/Text Have you filed a complaint in court? No Has any work been corrected? Yes

RCC099 12/05/18 Page 1 of 2 Licensed Complaint Form Departmental Use Only For Current or Suspended Licensees

D&H Air Conditioning The contract was Both All change orders were N/A This project was Residential This project involved Other Mini-split A/C Installations A building permit was obtained by N/A List and briefly describe each complaint item (Please do not write "see attached" or use additional pages unless necessary to further describe issues or list more complaint items) (limited to 100 characters per line)

trips after install to charge system with Freon. On 2nd trip, technician sniffed system and noted leaks at line connections in out of 5 heads installed. 3rd trip was to repair all connections and vacuum system to ensure that there were no leaks.; Master bedroom mini-split head inop on install day 4/30/2022. 5/12 tech came by and diagnosed compressor unit as defective. 5/12 a new compressor-condensing unit was ordered to replace the defective one. 5/17 I was informed that two boards were ordered to replace the ones on the defective condensing unit. 5/21 tech arrives to install boards, did not have the CPU grease needed to install, wipe doff what he could from old boards and installed. Still no startup. 5/28 techs replace condensing unit and run new communication cable, still no startup. 6/2 techs bring head from their shop used for training classes, connected it on the ground outside to test and it worked. The techs then remove the head in the M/bedroom and replace it with the one they brought. The cover was scratched from sliding around so they ordered a replacement for me. 6/10 the replacement cover was installed.; 4/30 line hides were not as described by salesman. The PVC pipe mounted to the exterior of our house looked hideous. Discussed this with Brian and Mike and the first thing they did was to paint the PVC pipe and brackets white. Still looked hideous. Finally came back to install line hide downwards to cover PVC piping. This is acceptable but every one is a different length and the two halves on each are different lengths also.; The head unit in game room was leaking green water down our wall. Tech diagnosed it as a clogged condensate pipe and the liquid line was not covered with insulation tape.; I noticed a hole/space in the roof where the lines run up to he condensing unit on the unit for the guest bedroom. I used caulking to fill the hole and inspected the other 4 adding minimal amounts to close a few gaps in the others.; End of July beginning of august, M/Bedroom unit, I noticed water inning down the exterior of the brick wall around the line hide area. 8/18 Tech came by and diagnosed it as the condensate tube wasn’t connected to the condensate pipe. The tech tried a repair and for the moment it seemed to work. 8/19 I noticed the leak again, called D&H and they sent the same tech out that came out on 8/18 even though I told them that that tech did not have what he needed to repair. The tech stated that he would contact a person so that they would know the situation..; 8/22 at about 9 am, I called D&H to find out what was going on. They were to schedule the repair today. I discussed the previous information and said that’s they would make sure the tech coming today would have what he needs to complete the repair. Around 11 am I received a phone call stating that I would be next for repair. At 4 pm I called D&H to inquire where the tech was. They said that they were going to call me, the tech was running late on the other job. While that tech was waiting while the system was vacuumed, he called the tech from 8/18 and 8/19 to better understand what needed to be done. The tech for 8/202 repair said that he did not have what was needed to repair and that my repair would need to be rescheduled. I requested to speak to a manager, was told they all went into a meeting but the message was sent to call me. I have not received a call as of 8/23 12:50 pm. 8/23 techs arrive with needed material to repair problem. They are in the process now. The techs installed vinyl tubing and clamped it to the head unit condensate tube. Also mentioned that the repair from the previous tech looked good and that the water was actually coming from the uninsulated liquid line.

Signature I declare under penalty of perjury that the information and documents contained on this Complaint Form, included with this complaint, or hereafter submitted in support of this complaint are true and accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if necessary, attend hearings and testify to facts. Printed Name Signature Date

Eric Wagner \complainant1\ \complainantd1\

RCC099 12/05/18 Page 2 of 2 Received 07/18/2023 ROC Legal

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Eric Wagner, No. 2022A-07175-CHC-ROC COMPLAINANT,

v. ADMINISTRATIVE LAW JUDGE DECISION D and H Air Conditioning Company Inc. dba D & H Air Conditioning & Heating Company ROC License No. 070188, RESPONDENT.

HEARING: July 18, 2023 at 9:00 AM. APPEARANCES: No appearance(s) by or on behalf of Eric Wagner (“Complainant”). Evan Thompson, Esq. appeared on behalf of D and H Air Conditioning Company Inc. (“Respondent”) with Philip Robles as a witness. John Smith appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). ADMINISTRATIVE LAW JUDGE: Jenna Clark.

FINDINGS OF FACT BACKGROUND AND PROCEDURE

1. On April 14, 2023, the Registrar issued a NOTICE OF HEARING ON CONTESTED CASE (“NOTICE OF HEARING”) in the above-captioned matter which set a hearing before the

Office of Administrative Hearings (“OAH”), an independent state agency, at 1:00 p.m. on May 18, 2023, to determine if grounds existed for the Registrar to discipline Respondent’s

contracting license based on alleged violations of Arizona Revised Statutes §§ 32- 1154(A)(2)(b), 1154(A)(3); Arizona Administrative Code (“ARIZ. ADMIN. CODE”) R4-9-

108(a-b), and 1154(A)(22). 2. On April 20, 2023, OAH received a MOTION TO CONTINUE on behalf of

Respondent. 3. On April 21, 2023, OAH received a telephone call from Complainant

whereby he noted that he had no objection to Respondent’s motion.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received 07/18/2023 ROC Legal

4. On April 28, 2023, OAH issued a MINUTE ENTRY – GRANTING CONTINUANCE which reset the matter for hearing at 9:00 a.m. on July 18, 2023. Correspondence was not returned as undeliverable by either party. 5. On July 11, 2023, Respondent submitted its Disclosure Statement, including proposed hearing exhibits 1-10, to OAH. HEARING EVIDENCE 6. On July 18, 2023, though afforded a fifteen (15) minute grace period, Complainant failed to appear. 7. No correspondence was received on behalf of Complainant to provide notice of unavailability, appear via alternative means, or continue. 8. No settlement is on file for this matter at OAH. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq. 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.1 Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.2 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”3 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.”4

ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. ADMIN. CODE R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999).

Received 07/18/2023 ROC Legal

4. ARIZ. ADMIN. CODE R2-19-117 provides that if a party fails to appear at a hearing, the administrative law judge may vacate the hearing and return the matter to the agency for any further action. 5. Here, Complainant failed to appear without establishing good cause. As such, it must be concluded that Complainant defaulted his appearance. 6. Because the record does not establish violation(s) of ARIZ. REV. STAT. §§ 32-1154(A)(2)(b), 1154(A)(3); ARIZ. ADMIN. CODE R4-9-108(a-b), and 1154(A)(22), no grounds exist for the Registrar to take disciplinary action against ROC License No. 070188. RECOMMENDED ORDER Based on the foregoing,

IT IS RECOMMENDED that the Registrar dismiss Complaint No. 2022-07175. NOTICE Pursuant to ARIZ. REV. STAT. § 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, July 18, 2023. Office of Administrative Hearings

/s/ Jenna Clark Administrative Law Judge

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

Martín Quezada, Director c/o Legal Department Registrar of Contractors 1700 W. Washington St., Ste. 105

Received 07/18/2023 ROC Legal

Phoenix, AZ 85007 [email redacted] Eric Wagner, Complainant 8760 N. Placita De Reynaga Oro Valley, AZ 85704 [email redacted]

Evan L. Thompson, Esq. Thompson Krone, PLC, Counsel for Respondent 3430 E. Sunrise Dr., Ste. 110 Tucson, AZ 85718 [email redacted]

By: OAH Staff

RECEIVED LEGAL 7/19/2023

Office of Administrative Hearings Electronic submission for docket 2022A-07175-CHC-ROC Other To Administrative Law Judge

Filing date: 7/19/2023

Filed by: Eric Wagner

Email address: [email redacted]

Telephone number: [number redacted]

Mailing address 8760 N Placita De Reynaga Oro Valley, AZ 85704

Pending hearing date: 7/18/2023

Email notifications [email redacted] [email redacted]

Other notifications

Submission and grounds I respectfully request a re-hearing in this matter. I arrived in the parking lot for your offices yesterday the 18th at 12:00 pm. I was there in time for the 1:00 pm hearing time. I then realized that I made an error for the time. When I spoke with the ROC and the Hearing office in person, both of the people I spoke with were also confused at what time it was. I realize that I was not there at 9 am due to my error, I take full responsibility for that. I apologize for holding up the proceedings and hope that there can be a re-hearing.

SID 057158 RECEIVED LEGAL 7/19/2023

Mary Coyne <[email redacted]>

2022A-07175-CHC-ROC Eric Wagner v. D and H Air Conditioning Company Inc message

OAH <[email redacted]> Wed, Jul 19, 2023 at 1 To: Mary Coyne <[email redacted]>, Legal New Mail - AZROC <[email redacted]>

Forwarding a request for rehearing.

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1075065.pdf 71K REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Eric Wagner, Case No. 2022-07175

COMPLAINANT, Docket No. 2022A-07175-CHC-ROC v. ORDER GRANTING COMPLAINANT’S REQUEST FOR D and H Air Conditioning Company Inc, REHEARING DBA: D & H Air Conditioning & Heating Company, License No. ROC 070188, RESPONDENT.

After a review of the file and record, Complainant’s request for rehearing is granted for the following reasons: BACKGROUND On March 10, 2023, the Registrar issued a Citation for alleged violations of A.R.S. §§ 32-1154(A)(2)(b), (3), and (22). On April 14, 2023, the Registrar issued a Notice of Hearing, setting a hearing for May 18, 2023 at 1:00 p.m. On April 28, 2023, the administrative law judge issued a Minute Entry continuing the hearing to July 18, 2023 at 9:00 a.m. On July 18, 2023, Complainant called the Registrar twice after realizing he had misread the documents and missed the hearing, and filed a written Request for Rehearing explaining that he arrived for a 1:00 p.m. hearing. ANALYSIS Under A.R.S. 41-1092.09(A) a party may file a motion for rehearing or review within 30 days after service of the Registrar Final Administrative Decision and Order. The Registrar may grant a rehearing or review of a decision for any of the reasons listed in A.A.C. R4-9-120(C). Here, Complainant’s request provides sufficient grounds to grant a rehearing or to merit of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. – Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602) 542-1525 Toll Free (877) 692-9762 Lg125 5/21 additional review by the Registrar. Therefore, the Registrar grants Complainant’s request for rehearing. ORDER IT IS ORDERED that Complainant’s request for rehearing is granted. A rehearing will be scheduled in due course. Dated August 2, 2023. By: /s/ Chance Peterson Chance Peterson General Counsel Legal Department Arizona Registrar of Contractors

Copy mailed via USPS First Class Mail August 2, 2023 to: Respondent D and H Air Conditioning Company Inc DBA: D & H Air Conditioning & Heating Company 3990 S Evans Blvd Tucson, AZ 85714 Respondent’s Attorney Evan L. Thompson, Esq. Thompson Krone PLC 3430 E Sunrise Dr Ste 110 Tucson, AZ 85718

Complainant Eric Wagner 8760 N Placita De Reynaga Oro Valley, AZ 85704 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar

Case No. 2022-07175 / KR of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. – Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602) 542-1525 Toll Free (877) 692-9762 Lg125 5/21 Mediation Notice

Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation.

The Office of Administrative Hearings is located at 1400 West Washington, Suite 101, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,

v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.

REQUEST

The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving

intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative

proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely

to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date

_____________________________________ _______________________ Respondent (or representative) Date

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 PREHEARING DISCLOSURE STATEMENT INSTRUCTIONS ***DO NOT SUBMIT THESE INSTRUCTIONS WITH THE PREHEARING DISCLOSURE FORM***

ADMINISTRATIVE RULES A copy of the Arizona Administrative Code’s Rules for the Registrar of Contractors can be located on the Registrar’s Website.

PREHEARING DISCLOSURE REQUIREMENT Under A.A.C. R4-9-118(A), before a hearing, the parties must prepare a disclosure statement. The disclosure statement must contain: • A list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony; and • A list of all the exhibits that the party will use at the hearing.

FILE PREHEARING DISCLOSURE STATEMENTS • The Prehearing Disclosure Statements and Exhibits may be submitted to the Arizona Office of Administrative Hearings using any of the following: • Electronically: https://portal.azoah.com/submission/ • In-Person or by Mail: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007

EXCHANGING DISCLOSURE STATEMENTS AND EXHIBITS Under A.A.C. R4-9-118(B) (effective November 5, 2017), a party to the hearing must serve on every other party and file with the Office of Administrative Hearings a copy of: • The disclosure statement; and, • Any exhibit that the party will use at the hearing. Service: The disclosure statement and exhibits must be served on all parties in accordance with Arizona Administrative Code R2-19-108 Filing Documents. Under A.A.C. R2-19-108, service is completed by: • Personal delivery; • 1st class, certified or express mail; or • Facsimile. Timing: The disclosure statement and the exhibits must be served and filed not less than seven calendar days before the date of the hearing. Under A.A.C. R2-19-108, a document is served on a party: • On the date it is personally served; • Five days after it is mailed by express or 1st class mail; • On the date of the return receipt if it is mailed by certified mail; or • On the date indicated on the facsimile transmission.

CONSEQUENCES FOR FAILING TO DISCLOSE Under A.A.C. R4-9-108(C), if a witness or an exhibit is not timely disclosed as required the rules, and good cause for the failure to disclose is not shown, then the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

Form RC-L-800A Prehearing Disclosure Statement Rev. 10/08/2019 Instructions Form PREHEARING DISCLOSURE STATEMENT FORM RC-L-800A

PART 1: WITNESS LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony. If you need additional space to list all witnesses, complete and attach additional Witness Lists. Example 1. Name 2. Telephone Number 3. Email Address

John Doe (123) 456-7890 [email redacted] 4. Subject Matter of Expected Testimony

John Doe will testify regarding the poor workmanship and poor installation of the Garage Door. Mr. Doe will also testify regarding the invoices and change orders for the project.

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 1 of 3 PART 2: EXHIBIT LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the exhibits that the party will use at the hearing. Note: All exhibits listed below must be provided to all parties to the hearing. See A.A.C. R4-9-118(B). If you need additional space to list all witnesses, complete and attach additional Exhibit Lists. Example Contract for new garage door. Invoice #10001 – Cost for garage door replacement.

Exhibit Exhibit Name

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 2 of 3 PART 3: ACKNOWLEDGEMENT & SIGNATURE I certify that the above information is true and correct and that I will serve a copy of this disclosure statement and any exhibits listed in Part 2 to all parties to the hearing in accordance with A.A.C. R4-9-118. I acknowledge and understand that if I fail to properly disclose a witness or exhibit, the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

I am the (check one):  Complainant  Respondent Docket No.

Print Name Signature Date

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 3 of 3