ALJDEC - Licensing
2022A-11114-CHC-ROC · Registrar of Contractors · 2023-04-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Frank Xavier Mauceri,
COMPLAINANT,
v.
S G H and C LLC
dba Scott Guerin Heating and Cooling
ROC License No. 252995,
RESPONDENT.
No. 2022A-11114-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 10, 2023 at 9:00 AM.
APPEARANCES: Frank Mauceri (“Complainant”) appeared on his own behalf. Hunter Guerin appeared on behalf of S G H and C LLC (“Respondent”). Gregory Johndrow appeared on behalf of the Arizona Registrar of Contractors (“Registrar”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. On February 19, 2009, the Registrar issued License No. 252995 Specialty Dual CR-39 Air Conditioning and Refrigeration contracting license to Respondent. The license is currently active and renewed through February 28, 2025. David Scott Guerin is the Qualifying Party/Member on this license. Respondent’s address of record for the license is 909 W, Hadley St. Tucson, AZ 85705. Respondent has an active $6,750.00 surety bond on the licensed issued by Contractors Bonding and Insurance Company effective March 20, 2013. The license has been disciplined by the Registrar on one prior occasion. There is also one open complaint listed which is presumably related to this matter.
On or about December 02, 2022, the Registrar received a 10-item complaint from Complainant against Respondent’s License No. 252995 alleging poor workmanship of their HVAC project. The Registrar designated it Complaint No. 2022-11114 and assigned to Gregory Johndrow (“Investigator Johndrow”) for investigation.
On December 07, 2022, Investigator Johndrow issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 29, 2022, at 10:00 a.m.
On December 29, 2022, Investigator Johndrow conducted a review project-related correspondence exchanged between the parties and inspected the work that had been performed on the project to date. He also took 7 photographs of the project site. Respondent was not present. When he was finished, Investigator Johndrow drafted his Inspection Notes. Ultimately, Investigator Johndrow only substantiated complaint item 10. Specifically, Investigator Johndrow determined that a written contract had not been executed between the parties for the project, a required permit had not been obtained for the project, and that the installed unit size was different than the size contracted and had not been approved or verified as being the appropriate size by the local building authority for code compliance. Investigator Johndrow concluded that complaint item 10 failed to meet the Registrar’s minimum workmanship standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies. Investigator Johndrow also substantiated compliant item 5 because there was no written contract executed for the project.
As a result, on January 03, 2023, Investigator Johndrow issued a Warning Letter to Respondent for an alleged violation of Ariz. Rev. Stat. §§ 32-1154(A)(12); 32-1158(A).
On January 03, 2023, Investigator Johndrow issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated one of Complainant’s workmanship allegations against Respondent. Respondent was put on notice that it had until 5:00 p.m. on January 19, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22) and 32-1154(E).
On January 24, 2023, Investigator Johndrow forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On January 27, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), 32-1154(A)(3); Ariz. Admin. Code R4-9-108(b), 32-1154(A)(12); 32-1158, and 32-1154(A)(22). Respondent was given until February 11, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On an unknown date, presumably on or before February 11, 2023, the Registrar received Respondent’s Answer whereby Respondent argued that “in lieu” of adhering to the Directive, Respondent performed “load calculations” and submitted a permit application on February 06, 2023, with the local building authority. In pertinent part, Respondent noted as follows:
After performing the load calculations it was found that the total cooling required including he ventilation air based on sensible and latent is 2.16 Tons. The unit we installed is 3 tons but it is a two stage unit and will run primarily on a lower tonnage output for heating and cooling capacity typically at 1/5 tons unless otherwise called for by extreme temperature differentials.
(All errors in original.)
On February 10, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on April 10, 2023. Per the March 07, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(2)(b)
Charge 2: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(b)
Charge 3: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on his own behalf and called Investigator Johndrow as a witness. Hunter Guerin testified on behalf of Respondent. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 374 N. Calle Del Chancero Green Valley, AZ 85614.
On or about June 06, 2022, Complainant and Respondent entered into a $7,650.00 contract for the installation of a 2.5-ton HVAC unit at Complainant’s residence.
Due to a Change Order on an unknown date, the contract price was reduced to $6,650.00 due to duct work subtraction.
On June 07, 2022, Complainant paid Respondent for the project in full.
On June 10, 2022, Complainant registered the unit with the manufacturer.
On June 10, 2022, work on the project commenced. On June 29, 2022, the project was completed.
No compliance or prehearing jobsite inspections were performed by the Registrar for this matter.
Additional Evidence
Scott Guerin is Mr. Guerin’s father. Mr. Guerin has worked for Respondent as a Sales Engineer since the business was founded.
The “duct work” portion of the parties’ contract was removed as a scope of work because Complainant failed to close-in the Arizona room where the work was to be performed.
On June 29, 2022, heating coils were installed.
Respondent did not have any communication with Complainant during the Directive’s compliance period.
On February 09, 2023, a permit was issued to Respondent for the underlying project by the local building authority.
Closing Arguments
In closing, Respondent argued that a lack of communication had “gotten the best” of the parties, and apologized for any perceived unprofessionalism or slight.
In closing, Complainant opined that Investigator Johndrow should have substantiated his first 9 complaint items, and reiterated his dissatisfaction regarding the lack of duct work on the project, notwithstanding the reduced price he paid on the contract.
CONCLUSIONS OF LAW
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.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ariz. Rev. Stat. § 32-1154(A)(2)(b) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a] building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(b) requires that “[a] contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are not in dispute.
It is undisputed that the parties had a $6,650.00 HVAC contract, which Complainant paid in full. It is also undisputed that Respondent installed the HVAC unit at issue without a permit, and therefore did not have the work approved by the local building authority. It is also undisputed that Investigator Johndrow determined that some of the work Respondent performed on the project did not satisfy the Registrar’s minimum standards, and that Respondent did not provide Complainant with a written contract. It is further undisputed that Respondent failed to timely comply with the Registrar’s Directive.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has not sustained its burden. The relevant and credible evidence of record establishes that Respondent received the Registrar’s Directive, and did not seek to obtain the permit necessary to perform corrective work until February 06, 2023; 18 days after the expiration of the Directive’s compliance period. Mr. Guerin offered no facts to establish that Respondent was unable to submit a permit request to the local building authority between and January 09, 2023, and January 03, 2023. Thus, violations of Ariz. Rev. Stat. §§32-1154(A)(2)(b), (A)(3), and (A)(22) exist.
Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(2)(b), 32-1154(A)(3), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established grounds for the Registrar to take disciplinary action against ROC License No. 252995.
Complainant may petition the Registrar’s Recovery Fund for financial recompense regarding this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent S G H and C LLC, dba Scott Guerin Heating and Cooling, ROC License No. 252995, be suspended for three (3) days based on its violation(s) of Ariz. Rev. Stat. §§32-1154(A)(2)(b), (A)(3), and (A)(22).
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, April 24, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
S G H and C LLC, Respondent
dba Scott Guerin Heating and Cooling
909 W. Hadley St.
Tucson, AZ 85705
[email redacted]
Frank Xavier Mauceri, Complainant
374 N. Calle Del Chancero
Green Valley, AZ 85614
[email redacted]
By: OAH Staff