ALJDEC - Licensing

2023A-05211-CHC-ROC · Registrar of Contractors · 2023-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gayle Lansberry,

COMPLAINANT,

v.

Air Tropics, LLC

License No. ROC 271115,

RESPONDENT.

No. 2023A-05211-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 16, 2023

APPEARANCES: Complainant Gayle Lansberry appeared on her own behalf. Respondent Air Tropics, LLC failed to appear. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Air Tropics, LLC (“Respondent”) is the holder of License Number 271115 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about December 20, 2022, Gayle Lansberry (“Complainant”) contracted with Respondent for the replacement of her HVAC system with a new split HVAC system. The contract price was $15,238.87. Complainant paid Respondent a deposit in the amount of $7,620.00.

On or about May 5, 2023, the Registrar received a Complaint against Respondent from Complainant alleging that Respondent had abandoned the project, specifically, “deposit check taken and no delivery or installation of HVAC system for 5 months.”

The Registrar assigned the Complaint to Investigator John Smith. On May 12, 2023, Investigator Smith conducted a Jobsite Inspection. Despite notice of the inspection, Respondent did not attend. Investigator Smith’s Jobsite Inspection Notes state the following:

Complaint Item 1: “Abandonment

deposit check taken and no delivery or installation of HVAC system for 5 months”

Investigator’s Observations: Verified.

The contract is dated 12/20/2022

The contract is for a split system Trane 18 SEER HVAC system, with a gas fueled furnace.

Model stated in the contract: Trane XV18 5-Ton 18 SEER Variable Speed Split Gas

Down payment in the mount of $7,620.00 paid by check, number 2618, dated 12/18/2022.

The respondent was not present for the ROC jobsite inspection.

The respondent has not responded to this complaint.

The respondent’s license is currently suspended.

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

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

Investigator Smith forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(12), specifically, A.R.S. § 32-1158.

Investigator Smith testified consistently with his Jobsite Inspection Notes. Investigator Smith testified that Respondent completely removed Complainant’s existing HVAC system leaving her with no heating in the winter and no air conditioning in the summer. Investigator Smith testified that there was no justification for removing the system prior to being ready to immediately install the new system. Investigator Smith also testified that Respondent’s license has been suspended and remains so, yet, Respondent continues to advertise and continues to contract with a suspended license.

Investigator Smith testified that Respondent’s contract did not contain an estimated date of completion, information about a customer’s right to file a complaint with the Registrar, and contact information for the Registrar.

Complainant agreed with Investigator Smith’s testimony and reiterated that Respondent continues to work. Complainant has had no contact with Respondent.

The hearing of this matter was initially scheduled to convene on September 5, 2023, at 1:00 p.m. On that date and time, Complainant appeared on her own behalf. Kevin Harris appeared on behalf of Respondent. Investigator John Smith was present. The parties participated in a prehearing discussion outside of the presence of the Administrative Law Judge. As a result of that discussion, the parties entered into a settlement agreement, however, needed additional time in which to execute the terms of that agreement. The matter was continued and set for a written Status Update on September 20, 2023.

On September 20, 2023, Complainant filed a written Status Update with the Tribunal stating that Respondent had not returned her deposit and requesting that a hearing be set.

On September 22, 2023, the Office of Administrative Hearings issued to the parties a Minute Entry Granting Continuance and Setting Hearing Via Google Meet. That Order was sent to Respondent’s email address of record with the Registrar, as well as a second email address provided by Respondent at the September 5, 2023 hearing setting. That Order advised the parties of the continued hearing date and time of November 16, 2023, at 1:00 p.m., and contained the Google Meet link to join the hearing by video or by telephone. Respondent did not appear for the continued hearing through an authorized member, employee, or attorney, notwithstanding proper notice of the hearing.

Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Administrative notice is taken of Respondent’s prior License record on November 28, 2023. Such prior License record reflects that Respondent’s License Number 271115 was first issued on February 17, 2011, and is suspended. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, and four complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent contracted with Complainant for the replacement of her HVAC system, Respondent accepted a deposit in the amount of $7,620.00 from Complainant, proceeded to remove Complainant’s existing HVAC system, and thereafter abandoned the project without legal excuse. Respondent’s actions are particularly egregious in that he caused Complainant to go without heating or cooling in the winter and summer months. Therefore, the credible evidence of record established that Respondent violated A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s contract did not contain all of the required elements for contracts. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

RECOMMENDED ORDER

Based on the foregoing, specifically the egregiousness of Respondent’s actions in this matter, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s License Number 271115.

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, November 28, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by e-mail to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

John Smith

[email redacted]

Gayle Lansberry

[email redacted]

Air Tropics, LLC

[email redacted]

[email redacted]

By: OAH Staff