ALJDEC - Licensing
2022A-09176-CHC-ROC · Registrar of Contractors · 2023-03-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Eric Phillips
COMPLAINANT,
v.
ALLTECH Solutions, Inc.
License No. ROC 296000,
RESPONDENT.
No. 2022A-09176-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 10, 2023
APPEARANCES: Complainant Eric Phillips appeared on behalf of himself. Hoss Kessler appeared on behalf of Respondent ALLTECH Solutions, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDING OF FACT
1. In May of 2022, Respondent ALLTECH Solutions, Inc. (ALLTECH) agreed to install a Heating, Ventilation, and Air Conditioning unit (HVAC) in Complainant Eric Phillips’s home, located in Flagstaff, Arizona, for the amount of $4,012.00. See the Registrar’s administrative record, pgs. 40-42.
2. On or about May 19, 2022, ALLTECH started work.
3. On or about October 10, 2022, ALLTECH stopped work.
4. On or about October 10 2022, the Arizona Registrar of Contractors (Registrar) received a complaint from Mr. Phillips alleging poor workmanship on the part of ALLTECH. The complaint provided, in relevant part, as follows:
AllTech Solutions "grossly undersized unit" according to Samsung, the manufacturer of the heat pump unit. Samsung offered over the phone technical assistance for an extended period of time, but refuses to offer further technical assistance after determining the unit was sized too small for both cooling and heating of the space. Samsung says their heat pumps performance would be adequate if it were sized properly to the space. Samsung says no Manual J calculation was ever done by Alltech Solutions prior to install. When the owner questioned Samsung as to how many square feet this unit should be sized for. Samsung replied, that though 400sqft was a general rule of thumb for this 1 ton unit, a manual J calculation should be done 100% of the time. The space is 450sqft plus an attached 58 sqft of open hallway for a rough total of 508sqft. ; Installation was not done properly causing widespread water damage to drywall in ceiling surrounding unit. A restoration company, Mammoth Restoration, has been out to evaluate the damage and has determined that the water damage was caused by this Heat Pump unit. They determined the condensation line was improperly installed. There is significant drywall and insulation damage.
5. On or about November 8, 2022, Registrar Investigator Sheldon White conducted a job-site inspection. Investigator White discovered that ALLTECH had not applied for nor obtained a permit for the project. Investigator White’s job-site inspection notes, provided, in relevant part, as follows:
On 10/10/2022, The Complainant, filed a complaint against the Respondent, for alleged w d workmanship violations arising from work performed at Complainant’s residence located at, 1431 N. Rim Dr., Flagstaff, Arizona on 10/10/2022. The parties’ agreement was memorialized in a written contract dated 05/23/2022 offered to and accepted by Eric Phillips. The parties’ agreement called for Respondent to install a heat pump for A/C and heat to the main living area of the home. The agreement called for Eric Phillips to pay Respondent $4,012.00
I arrived at the complainant’s residence at the scheduled time. We proceeded to inspect the items on the complaint list and I found the following: That the respondent did not apply for or receive a building permit from the City of Flagstaff. No evidence of a manual J calculation was provided. An email from the manufacture was provided stating that the unit was under sized. The air temperature in the home was between 61 and 66 degrees F., the outside air temperature was 44 Degrees F (minimum state standard 70 Degrees F). I found the air intake for the condensation line to be at a lower level than the line and corollary sheetrock damage had occurred. I took seven photos with my state issued google pixel 4 a model GO25J. The photos have been scanned into Salesforce as a PDF file.
6. On November 8, 2022, the Registrar issued a Directive to ALLTECH. Through the Directive, the Registrar directed ALLTECH to correct Complaint items 1 and 2, by appropriate means, no later than November 28, 2022. The November 8, 2022 Directive provided in relevant part as follows:
Complaint Item: 1 - Complaint was written in a narrative investigator wrote complaint items from narrative. Undersize heat pump installed by Respondent.
Investigator’s Observation: Respondent shall complete project per local building codes and manufacturer’s installation instructions. Prior to any work beginning started all applicable permits shall be obtained. All required inspections shall be scheduled and passed.
Governing Rule: 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.
Compliance Item: 2 - Condensation line improperly installed, casing condensation water to be expelled on the ceiling. Water damage to the sheetrock and ceiling from improperly installed condensation line.
Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
7. ALLTECH did not correct the items listed in the Directive by November 28, 2022.
8. On January 3, 2023, the Registrar issued a Citation against ALLTECH’s license. Through the Citation, the Registrar alleged that ALLTECH violated Arizona Revised Statues (A.R.S.) §§ 32-1154(A)(2)(b),(A)(3), and (A)(22); Arizona Administrative Code (A.A.C.) R4-9-108(A) and (B).
9. ALLTECH filed a timely answer to the Citation.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on February 10, 2023.
12. At hearing, Mr. Phillips testified on behalf of himself. Registrar Investigator Steve Philpot testified regarding Investigator White’s investigation of the complaint. Hoss Kessler, an employee of ALLTECH, testified on behalf of ALLTECH.
13. Mr. Kessler explained that ALLTECH agreed to install a 1 ton unit in
Mr. Kessler’s home. Mr. Kessler explained that he suggested that Mr. Phillips install a 2 ton unit in his home. However, Mr. Phillips rejected the offer. However, there was no evidence presented that ALLTECH obtained a written waiver from Mr. Kessler regarding the consequences of failing to install a 2 ton unit in Mr. Phillips’s home.
14. Mr. Kessler further stated that Mr. Phillips requested a unit for cooling only and not for heat.
15. Mr. Kessler stated that he requested that Investigator grant more time to comply with the Directive because ALLTECH was unable to obtain a permit by the Directive deadline. However, there was no evidence provided to establish that the alleged delay was out of the control of ALLTECH.
16. Mr. Phillips explained that ALLTECH performed poor work when it installed the HVAC unit in his home.
17. Administrative notice is taken of Respondent’s prior License record on March 2, 2023. Such prior License record reflects that Respondent’s license number 296000 was first issued on May 20 2015, and is suspended. Such prior License record also reflects that there are three open complaints against Respondent’s license. Such prior License record further reflects that one complaint filed against Respondent’s license was closed after the complaint was resolved or settled by Respondent, or withdrawn by complainant after the issuance of a corrective work order of formal citation.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. 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 Vazanno 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).
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. R4-9-118.
4. The preponderance of the evidence shows that Respondent failed to obtain
a permit for the project, which is a violation of A.R.S. § 32-1154(A)(2)(B).
5. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B). The evidence presented at hearing shows that Respondent suggested that Complainant install a 2 ton unit in his home. However, if Respondent could not perform the HVAC installation without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by Complainant. Respondent did not obtain such a warranty disclaimer in this case.
6. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a 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 number 296000 for three days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A) (7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, March 2, 2023.
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 2, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Eric Phillips
1431 N. Rim Dr.
Flagstaff, AZ 86001
[email redacted]
ALLTECH Solutions, Inc.
4101 S. Longfellow Ave. Ste. 101
Tucson, AZ 85714
[email redacted]
Steve Philpott
[email redacted]
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
By: OAH Staff