ALJDEC - Licensing
2022A-08482-CHC-ROC · Registrar of Contractors · 2023-03-02
,IN THE OFFICE OF ADMINISTRATIVE HEARINGS
R F Builders LLC,
COMPLAINANT
v.
Comfort Engineering Inc.,
DBA: Scottsdale Air Hearing and Cooling,
License No. ROC 101485,
RESPONDENT
No. 2022A-08482-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 13, 2022, 9:00 A.M.
APPEARANCES: Peter Frederick, owner, appeared on behalf of Complainant; Joe Warner, Operations Manager, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Comfort Engineering Inc., dba Scottsdale Air Hearing and Cooling (Respondent), is the holder of License Number 101485 issued by the Registrar of Contractors (Registrar).
2. On or about October 14, 2022, R F Builders, LLC (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of an air conditioning unit by Respondent at a residence in Phoenix, Arizona (“project”).
3. The Registrar performed an inspection of the project on November 28, 2022, and confirmed the following:
Compliance Item: 1 – The Air Conditioner was incorrectly installed. The condensation lines were not installed properly and water leaked under the new wooden floors.
Investigator’s Observation: It appears during the installation, the lines to the Mini split head, were cut.
4. Thereafter, considering that Respondent’s license had at that time been suspended due to no Qualifying Party, the Registrar then issued a Citation to Respondent, dated December 14, 2022, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusal to perform without legal excuse);
b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to perform work in a professional and workmanlike manner);
5. The Registrar issued a Notice of Hearing, dated December 27, 2022, that set a hearing for February 13, 2023, at 9:00 A. M.
6. At the February 13, 2023 hearing, Complainant presented the testimony of Peter Frederick, owner, and James Kelly, Jr., the home owner; Respondent presented the testimony of Joe Warner, Operations Manager. Chris Fultz, the Registrar Investigator (Investigator) testified on behalf of the Registrar. Neither party submitted exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his job inspection notes. He stated he did not operate the unit so did not observe the actual leaking although he did observe leak damage to flooring and drywall. He stated he observed a cut in each of the flexible lines to the unit but could not determine whether that or anything else was the source of any leak. He did not issue a Directive due to the suspended license status of Respondent.
8. As herein relevant to the Citation, Peter Frederick, owner of Complainant, testified on behalf of Complainant that he was the builder on the project and that the unit started leaking once the condensation built up. He stated that Respondent should have used non-flexible PVC condensation line and that the flexible line used was not installed two inches behind a stud as it should have been so that it would not move. He admitted that he cut one of the lines when cutting into the wall to check for the leak. He further admitted it passed all inspections but stated that the unit has not worked, but was not more specific in that regard other than it started leaking. He was not definitive as to whether he was present to observe the start-up.
9. As herein relevant to the Citation, James Kelly, Jr., owner of the subject residence, testified on behalf of Complainant that the unit started leaking soon after he started using it. Further, he testified that he received a text that Respondent was going to do a start-up of the unit on July 29, 2021, but then he misplaced the remotes and did not use the unit that summer and did not use it again until June 2022. He did not state whether the unit could not be operated without a remote. He stated it started leaking a few weeks after he found the remotes and used the unit in 2022.
10. As herein relevant to the Citation, Joe Warner, Operations Manager of Respondent, testified on behalf of Respondent that it is now operating under a new license as of April 28, 2022, and has the same Qualifying Party, Michael Cross. He testified that he had never been to the residence but that he believes from the review of photographs that foam insulation applied by Complainant after installation caused some sort of damage to the lines which caused the leaking.
11. Pursuant to Arizona Administrative Code Rule 4-9-117, administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on March 23, 1994, and is expired as of February 28, 2022. The site also reflects no previous discipline cases.
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CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. The expired status of Respondent’s licenses does not deprive Complainant of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. See A.R.S. § 32-1154(C) (“The expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . .”).
5. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
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3. Violation of any rule adopted by the registrar.
...
6. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
7. A.R.S. § 32-1154(A)(1). Complainant has failed to present sufficient evidence to establish that Respondent abandoned the contract or refused to perform without legal excuse in violation of A.R.S. § 32-1154(A)(1). There was no evidence presented to show that Respondent did not fully complete the installation. The Tribunal does not find that Respondent’s refusal to make repairs well after installation to be an abandonment or refusal to perform.
8. A.R.S. § 32-1154(A)(3). Complainant has failed to present sufficient evidence to establish that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The fact that an air conditioning unit leaked almost two years after it was invoiced or installed is not in itself sufficient to show work was not performed in a professional and workmanlike manner. Complainant was not entirely consistent with its dates and could not ascertain when it was first installed. The Complaint states that work started in June 2, 2020, and ended on January 10, 2022. However, the evidence presented was that the bid was dated June 6, 2020, the unit was invoiced on October 15, 2020, start-up by Respondent was on July 29, 2021, and that a leak was not observed until June 2022. There was no evidence of any leaking during start-up.
Further, Complainant has not shown by a preponderance of the evidence what caused the leak. It stated that Respondent should not have used a flexible condensation line and that the line should have been placed in a specific position, yet it cited no building code or manufacturing specification with which Respondent failed to comply. Moreover, Complainant has not shown by a preponderance of the evidence the precise location of the leak. Complainant admitted to causing at least one of the cuts in the condensation line when it cut into the wall to investigate the leaking, but did not establish whether that other cut preceded the cutting into the wall, or whether the other cut was the location of the leaking.
9. Accordingly, the Tribunal finds that Complainant has not established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(1) and/or A.R.S. § 32-1154(A)(3).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint shall be dismissed.
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, March 3, 2023.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
R F Builders, LLC
P.O. Box 14855
Scottsdale AZ 85267-4855
[email redacted]
Comfort Engineering, Inc.
DBA: Scottsdale Air Heating and Cooling
1121 N. Sickles Dr.
Tempe, AZ 85281
[email redacted]
By: OAH Staff