ALJDEC - Licensing
2023A-08813-CHC-ROC · Registrar of Contractors · 2024-01-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Patricia Santa Cruz
COMPLAINANT,
v.
Kino Mechanical LLC
License No. ROC 334590,
RESPONDENT.
No. 2023A-08813-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 8, 2024
APPEARANCES: Complainant Patricia Santa Cruz represented herself. No one appeared on behalf of Respondent Kino Mechanical, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None.
_____________________________________________________________________
FINDINGS OF FACT
1. On or about October 2, 2022, Complainant Patricia Santa Cruz entered into a contract with Respondent Kino Mechanical, LLC (Respondent), wherein Respondent would install a new air condition unit in Complainant’s home for the amount of $9,000. Complainant paid $9,000 for the installation.
2. On or about October 17, 2022, Respondent started work.
3. On or about October 19, 2022, Respondent stopped work.
4. On or about August 2, 2023, the Arizona Registrar of Contractors (Registrar or ROC) received a complaint from Complainant alleging that Respondent improperly installed an air conditioning unit in her home.
5. On October 5, 2023, Investigator Mike Springer conducted a job-site inspection.
6. On October 6, 2023, the Registrar issued a Directive to Respondent directing Respondent to correct the following items, no later than October 24, 2023, by appropriate means:
Compliance Item: 1 - Restoration of an incorrectly installed HVAC Packaged system. Return air vent in inappropriate to accomadate 20x30 3 1/2 ton system
Investigator’s Observation: The return air vent is too small for the
opening. Correct size needs to be installed.
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 - Thermostat wire is exposed inside and wire is not protected with conduit through roof to unit
Investigator’s Observation: Thermostat wire is hanging and exposed inside the home and at the unit on the roof. Unprotected.
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: 3 - Install PVC condensation line.
Investigator’s Observation: No condensation line installed.
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: 4 - Seal return air sheet metal.
Investigator’s Observation: Cracks in sheet metal ducting need to be sealed.
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: 5 - No contract provided.
Investigator’s Observation: No contract. Provide contract to
Complainant that meets 32-1158(A) for minimum elements of contract.
Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
7. Respondent failed to correct the items by October 24, 2023.
8. On October 30, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(A).
9. Respondent filed a timely answer to the Citation.
10. The matter referred the matter to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on January 8, 2023.
12. At hearing, Complainant testified on behalf of herself. Complainant explained that Respondent performed poor work and incorrectly installed the air conditioning unit. Investigator Springer testified consistently with his job-site inspection notes and the Directive.
13. No one appeared on behalf of Respondent at the hearing on January 8, 2023. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
14. Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s
license history on the Registrar’s public website on this date. Respondent’s License
No. ROC 334590 is active and in good standing. Respondent’s license has been disciplined in one case.
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 preponderance of the evidence does not show that Respondent failed to perform the work described in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
7. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 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 ROC License: No. 334590 held by Kino Mechanical LLC, for five days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, January 29, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Patricia Santa Cruz
[email redacted]
Kino Mechanical LLC
[email redacted]
By: OAH Staff