ALJDEC decisions subject to certification as final

2023A-08320-RFA-LS-ROC-RH · Registrar of Contractors · 2025-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Samuel Wingersky,

COMPLAINANT

Strongbuilt Plumbing & Air LLC

License No. ROC 304277,

RESPONDENT

No. 2023A-08320-RFA-LS-ROC-RH

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 6, 2025

APPEARANCES: Complainant Samuel Wingersky appeared via Google Meet on his own behalf. Respondent Strongbuilt Plumbing & Air LLC was represented by Jordan L. Davies and Craig Cline who appeared via Google Meet. The Arizona Registrar of Contractors was represented by Assistant Attorney General Charles S. Hover III who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors exhibits 1-9, and Complainant’s exhibit 2 was admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Registrar of Contractors (Registrar) issued License No. 304277 to Respondent Strongbuilt Plumbing & Air LLC.

On or about July 22, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to an installation of a HVAC system at his primary residence.

The Directive from the Registrar specified that Respondent was to remedy several items on the project as follows in pertinent part:

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.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Governing Rule: A.R.S. § 32-1154(A)(3) – R4-9-108(b): Violation of any rule adopted by the registrar; Namely R 4-9-108(b): A contractor shall perform work in accordance with any applicable building codes...

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.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

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:

Excessive gaps at pipes.

Excessive gaps at ends / walls

Excessive gaps at seams

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:

Excessive gaps at pipes.

Excessive gaps at ends / walls

Excessive gaps at seams

Not installed in a straight line.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner...

As a result of the workmanship complaint, on October 6, 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).

The matter proceeded to a hearing on December 13, 2023, and on January 3, 2024, the Decision was certified.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover $30,000.00 on or about April 1, 2024.

The Registrar issued a Notice of Administrative Award on July 8, 2024, finding that Complainant’s actual damages were $27,760.00, however that Award was later quashed on October 1, 2024.

The Registrar then issued a Notice of Administrative Award in the amount of $4,700.00 on February 18, 2025. Complainant timely requested a hearing, and the Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on May 6, 2025.

At the outset of the hearing, the Complainant and Respondent stipulated the Complainant qualified for an award from the Recovery Fund.

Tedi Quezada, was a Legal Assistant II for the Registrar and reviewed Complainant’s Recovery Fund claim. Ms. Quezada testified that the initial award in 2024 was incorrect was it was for an entire replacement of the HVAC unit rather.

Ms. Quezada testified that on the initial award was quashed, she reviewed the two bids supplied by Respondent. Ms. Quezada testified that there were bids from GRADEZ in the amount of $3,500.00, and $1,200.00, which were used to determine the damages. Ms. Quezada then communicated with Registrar Investigator John Smith to ensure that the bids met the need for the corrective work required.

Finally, Ms. Quezada testified that none of the bids supplied by Complainant were determined to be within the proper scope of the work needed to repair the unit.

Mr. Wingersky testified that he believed a full replacement of the unit was needed as demonstrated in his Exhibit 2. Further, Mr. Wingersky testified that the bids submitted by Respondent and used by the Registrar were flawed as GRADEZ did not physically go to the property to determine what work was needed to make the repairs.

Jeff Wenzel testified on behalf of Respondent. He testified that he worked on the original installation of the unit in February/March 2021. Mr. Wenzel testified that he reached out with GRADEZ to provide the bids, and discussed the project at length, as well as providing pictures and the Directive. Finally, Mr. Wenzel testified that, it was his belief that the unit did not need to be replaced as repairs would be all that was needed to correct the matter.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages: 1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.”

Since Complainant challenged the Award, it bears the burden of proof to establish that the proposed payout from the Fund was incorrect 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.” 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.”

The tribunal believes that the credible evidence demonstrated that repair, and not replacement, was the correct determination. That being said, the tribunal has some concerns that GRADEZ never went to the property to inspect the repairs needed. However, Complainant presented no persuasive contravening evidence as to the cost for the repairs.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $4,700.00.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $4,700.00.

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.

-54864001

001

-137160-45720000Done this day, May 21, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Samuel David Wingersky

[email redacted]

Craig L. Cline, Esq.

Udall Law Firm LLP

[email redacted]

By: OAH Staff