ALJDEC - Licensing

2023A-08320-CHC-ROC · Registrar of Contractors · 2023-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Samuel David Wingersky,

COMPLAINANT

v.

Strongbuilt Plumbing & Air LLC

License No. ROC 304277,

RESPONDENT

No. 2023A-08320-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2023

APPEARANCES: Samuel David Wingersky appeared on his own behalf. John Shamahorn, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 3A-3F, 4A-4I, 5A, 5B, 5G, 7A, 7B, 7J, 7R and Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Strongbuilt Plumbing & Air LLC (Respondent) is the holder of License No. 304277 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 17, 2020, Samuel Wingersky (Complainant) entered into a contract with general contractor Strongbuilt Enterprise (Enterprise), a non-party, for the construction of a 3000 sq. foot addition and patio build. Enterprise subcontracted the plumbing and air work to Respondent. In a settlement agreement with Enterprise, Enterprise assigned any and all rights, title, claim and interest in its contracts and warranties to Complainant.

On or about July 22, 2023, the Registrar received a complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith issued a written directive 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 October 4, 2023.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: “The downstairs dryer vent is not up to code (see Exhibit #3).;”

Previous complaint items / observations / decisions:

• None

Investigator’s Observations in response to this complaint allegation: Verified.

• The respondent confirmed installing this dryer exhaust duct.

• The exhaust duct includes improper use of transition duct material within the duct run.

• There are no visible mechanical fasteners at duct connections

• Due to the amount of 90 and 45 degree elbows installed, the duct exceeds the maximum allowable length.

• The exterior duct termination is restricted by grading/rock.

. . . .

Complaint Item 3: “The mini-split AC unit was damaged upon installation (see Exhibit #4).;”

Previous complaint items / observations / decisions:

• 2021-03079 Complaint Item 42B

• Complaint Item 42B: (Addendum Item 7B) “mini split damaged upon install”

Investigator’s Observations: Verified.

The protective wire grill is missing from the back side of the condensing unit. There are bent/damaged fins on the back side of the condensing coil.

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

Investigator’s Observations in response to this complaint allegation: Verified.

• The protective wire grill is missing from the back side of the condensing unit.

• There are bent/damaged fins on the back side of the condensing coil.

. . . .

Complaint Item 4: “The “Hat Channels” are poorly installed (see Exhibit #5).;”

Previous complaint items / observations / decisions:

• Complaint Item 73: (Addendum Item 38) “...the “hat channels...extremely large gaps in the wall where holes were drilled...large gaps and warped seams...”

Investigator’s Observations: Verified.

The “Hat channel” that has been installed to cover the refrigerant lines:

o Excessive gaps at pipes.

o Excessive gaps at ends / walls

o Excessive gaps at seams

o Not installed in a straight line.

Compliance Inspection Findings for this item: This has NOT been corrected. No corrective work has been done.

Investigator’s Observations in response to this complaint allegation: Verified.

The “Hat channel” that has been installed to cover the refrigerant lines:

o Excessive gaps at pipes.

o Excessive gaps at ends / walls

o Excessive gaps at seams

o Not installed in a straight line.

All error in original.

Following the issuance of the written directive, on September 26, 2023, Respondent’s workers arrived at Complainant’s home but did not perform any corrective work at that time.

The deadline to perform corrective work was October 4, 2023. On October 5, 2023, Respondent reached out to Complainant in an attempt to schedule a time to correct the work. Because the compliance deadline had expired, Complainant was advised by Investigator Smith that he did not have to allow Respondent on the property to perform any work. Complainant subsequently denied access to his property.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A), and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Smith testified consistently with his written directive and compliance inspection report. He further stated that Respondent did not ask for an extension of time on the compliance deadline.

John Shamahorn, qualifying party, testified on behalf of Respondent. He testified that he had no disagreements with the three issues listed on the written directive and knew the items needed corrective work and wanted to and was willing to perform the corrective work.

Administrative notice is taken of Respondent’s prior License record on 304277. Such prior License record reflects that Respondent’s License No. 304277 was first issued on April 13, 2016, and is currently active. Such prior License record also reflects that this was the only open complaint and there were no prior complaints 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’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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not complete the corrective work following the Directive being issued by the compliance deadline. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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 No. 304277 for a period of one day.

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, December 28, 2023.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff