ALJDEC - Licensing

2023A-08466-CHC-ROC · Registrar of Contractors · 2024-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Edward Quinn

COMPLAINANT,

v.

Summer Heating and Air LLC

License No. ROC 243191,

RESPONDENT.

No. 2023A-08466-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 21, 2023 and January 11, 2024

APPEARANCES: Timothy M. Ray, Esq. represented Complainant Edward Quinn. Vincent Sandoval represented Respondent Summer Heating and Air, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1, 2, 6, 7, 8, 9, 10.

_____________________________________________________________________

FINDINGS OF FACT

1. According to the public website of the Arizona Registrar of Contractors (Registrar or ROC), on March 19, 2008, the Registrar issued License No. ROC 243191 for Specialty Residential R-39R Air Conditioning and Refrigeration to Respondent. Respondent’s qualifying party is Vincent Sandoval.

2. Respondent agreed to install an air conditioning unit (AC unit) in Complainant’s in-law suite and new compressors in Complainant’s home, for an amount that exceeded $2,000.00. See the Registrar’s administrative record, pg. 43. At the time, another contractor was remodeling Complainant’s home. Respondent did not provide Complainant with a written contract for the work.

3. On or about January 4, 2023, Respondent started work.

4. On or about January 5, 2023, Respondent stopped work.

5. On or about July 25, 2023, Complainant filed a complaint with the Registrar alleging poor workmanship on the part of Respondent.

6. On August 17, 2023, Investigator James Carter conducted a job-site inspection.

7. On August 24, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct the following complaint items, by appropriate means, no later than September 14, 2023:

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

Compliance Item: 1 - Illegal Installation of AC unit in the in-law Suite

Investigator’s Observation: Verified. Investigator observed a mini split AC unit that was installed by the Respondent. connected to a 40a disconnect. Per the install specs max should have been 15a. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Installation of mismatched compressors with wrong coils for whole house

Investigator’s Observation: Verified. Respondent connect two new compressors that are not compatible with the existing air handlers. The Respondent will need to correct this by the appropriate means, using an appropriately licensed contractor.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

8. Respondent did not correct the items listed in the Directive by the due date. Respondent did not correct Complaint Item 1 because he did not perform electrical work on the AC unit in the in-law suite. Respondent requested to complete Complaint Item 2, however, Complainant would not allow Respondent access to his home to correct Complaint Item 2, because Complainant did not agree with the way that Respondent planned to correct Complaint Item 2. Respondent proposed to install the correct coils on the compressors.

9. On November 13, 2023, the Registrar issued a Citation to Respondent alleging that Respondent may have violated A.A.C. Rule 4-9-108(A) and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(12) and (22); and Ariz. Rev. Stat. section 32-1158. The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

10. Respondent filed a timely response to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. A hearing was held on December 21, 2023 and January 11, 2024.

13. At hearing, Complainant testified on behalf of himself. Mr. Sandoval testified on behalf of Respondent. Investigator James Carter testified regarding his investigation of the complaint.

14. Investigator Carter explained that he would not have substantiated Complaint Item 1 if Respondent did not in fact perform electrical work on the AC unit in the in-law suite.

15. Complainant explained that Respondent performed poor work in connection with the installation of the AC unit and compressors. Complainant did not dispute that he refused to allow Respondent to repair the compressors by replacing the coils. Complainant explained that his AC unit and compressors were inspected by a technician from Pro Skill Services. Complainant stated that the technician told him that the AC unit and condensers would need to be replaced. Complainant also stated that other contractors advised him that the AC unit and condensers would need to be completely replaced. Complainant alleged that the technician informed him that if Respondent repaired the condensers by simply replacing the coils, it may cause a fire. However, Pro Skill Services did not state in its written report that such a repair would cause a fire. See Complainant’s Exhibit 2.

16. Mr. Sandoval explained that he did not perform the electrical work on the AC unit in the in-law suite. There was no eyewitness testimony nor written evidence provided to establish that Respondent performed the electrical work on the AC unit in the in-law suite.

17. Mr. Sandoval further testified that during the timeframe for compliance with the Directive, he offered to repair the compressors by installing new coils. However, Complainant refused to allow him to access his home. Complainant would only allow Respondent access if he installed a new AC unit in the main home and in the in-law suite.

18. I find Mr. Sandoval’s testimony to be credible.

19. Upon review of the evidence presented at hearing, the Administrative Law Judge concludes that Respondent did not perform the electrical work on the AC unit in the in-law suite. Therefore, Complaint Item 1 should have been unsubstantiated.

CONCLUSIONS OF LAW

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

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

3. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

4. 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).

5. The undisputed evidence established that Respondent failed to provide Complaint with a written contract that complied with the requirements of A.R.S. § 32-1158(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).

6. The preponderance of the evidence does not show that Respondent performed poor work in connection with Complaint Item 1 because Respondent did not perform electrical work on the AC unit in the in-law suite. Therefore, Respondent was not required to correct Complaint Item 1.

7. The preponderance of the evidence shows that Respondent denied Complainant reasonable access to his home to correct Complaint Item 2. Complainant failed to establish reasonable grounds for denying access to correct the installation of the mismatched compressors. Complainant failed to provide sufficient evidence to establish that Respondent would have caused a fire to his home or other damage to his home by installing the correct coils on the compressors.

8. After a Directive is issued, the homeowner must allow the contractor access to the home to repair the work in the manner deemed appropriate by the contractor. The Administrative Law Judge finds that Complainant denied Respondent access to his home to correct Complaint Item 2.

9. Upon consideration of the evidence presented at hearing, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of A.R.S. § 32-1154(A)(3) and Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(A). If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended for three days.

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, January 31, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Timothy M. Ray, Esq.

[email redacted]

[email redacted]

Edward Quinn

[email redacted]

Summer Heating and Air LLC

[email redacted]

By: OAH Staff