ALJDEC - Licensing

2023A-04443-CHC-ROC · Registrar of Contractors · 2023-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ryan Hutcherson,

COMPLAINANT

v.

Aria Air Conditioning and Heating Inc.

License No. ROC 267741,

RESPONDENT

No. 2023A-04443-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 20, 2023

APPEARANCES: Complainant Ryan Hutcherson appeared via Google Meet on his own behalf. Respondent Aria Air Conditioning and Heating Inc. was represented by Randolf Wolfson who appeared via Google Meet. Investigator Jack Grimm appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Aria Air Conditioning and Heating Inc. (Respondent) was the holder of License No. 267741 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 14, 2022, Ryan Hutcherson (Complainant) agreed to have Respondent install a HVAC unit at his residence. The total cost was $10,000.00.

On or about April 16, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on April 28, 2023.

Investigator Grimm then issued a written directive on or about May 4, 2023, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 22, 2023.

. . .

NOTE: This license is currently suspended and no corrective work can be performed at this time.

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Leaking - caused ceiling, drywall damage, secondary drip pan not attached.

Investigators Observation: Secondary pan is not installed and is just sitting in place under air handler. At some point there was a condensation leak that cause dry wall damage to the ceiling below the unit in the attic.

*Install secondary pan correctly and repair all water damaged locations due to the leak. Verify installation or complete all condensations lines and secondary lines.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #2: Not complete - Didn't hook up heat / missing metal pipe.

Investigators Observation: Homeowner states last fall it was discovered that the heating portion of the unit was not functioning or the flu pipe was not installed. With respondents failure to return to correct the homeowner had others perform work to make the heating function operate. Flu pipe as installed does not appear correct.

*Verify the heat function is operating correctly and install flu pipe correctly.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #4: New unit attached to old air ducts, poorly hung, almost folded, poor circulation.

Investigators Observation: The installation of the unit and/or workers in the space appears to have compromised the existing flex duct work causing restrictions.

*Correct all locations of poorly attached and locations with the duct lines foled causing poor air movement.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #6: Old unit still in the attic (dangerous) if it falls through ceiling.

Investigators Observation: Old unit has not been removed for the attic.

*Remove all the old components and dispose of properly.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #7: Left the area a complete mess.

Investigators Observation: A mess and debris is still present in the attic and needs to be cleaned up and removed. Observed locations where the attic insulation has been compromised needs to be corrected as well.

Governing Rule: 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item #8: Never provided us with invoice/receipt. We asked multiple times for receipts and always told "oh yeah, I'll email you as soon as I get home."

Investigators Observation: Warning letter will be issued for Elements of a

Contract.

Governing Rule: 32-1158 Elements of a Contract.

(All errors contained in the original).

On June 19, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

On or about July 21, 2023, a Notice of Hearing was issued setting a hearing on August 28, 2023 at the Office of Administrative Hearings, an independent state agency.

After a continuance, a hearing was held on September 20, 2023.

At hearing, Investigator Grimm testified as to the Registrar’s involvement and the above timeline.

Investigator Grimm testified that Respondent’s license was suspended for non-renewal on June 27, 2022, thus while Respondent could not complete the Directive by performing the work, it could have entered into a financial settlement to resolve the matter.

Further, Investigator Grimm testified that no compliance inspection was performed as Complainant informed him that no resolution had been achieved.

Complainant testified that everything was put together horribly and that the gas line for the heating portion of the unit was not even connected. Therefore, he had to have another company come and connect the same.

Respondent failed to appear at the hearing, but his counsel stipulated to the findings in the Written Directive.

Administrative notice was taken of Respondent’s prior License record on October 2, 2023. Such prior License record reflected that Respondent’s License No. 267741 was first issued on September 24, 2010, and reflected that there was one open complaint, namely the present complaint, and two disciplined cases. The record also reflected that Respondent’s license was suspended on or about June 27, 2022.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also 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).

The preponderance of the evidence established, and Respondent’s attorney stipulated that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. While Respondent could not perform the work due to his suspended license, he failed to reach a monetary settlement with Complainant. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License No. 267741.

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.

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, October 2, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

Ryan Hutcherson

[email redacted]

Randolph D. Wolfson

[email redacted]

Aria Air Conditioning and Heating Inc.

18533 W Paseo Way

Goodyear, AZ 85338

[email redacted]

By: OAH Staff