ALJDEC - Licensing

2023A-09108-CHC-ROC · Registrar of Contractors · 2024-02-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

YuanChing Tseng,

COMPLAINANT

v.

Jimmy Cheon Choe

DBA: Choice A C

License No. ROC 106461,

RESPONDENT

No. 2023A-09108-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 5, 2024

APPEARANCES: YuanChing Tseng appeared on her own behalf. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Additionally, Complainant’s Exhibits 1 through 13 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Jimmy Cheon Choe (Respondent) is the holder of License No. 106461 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 15, 2023, YuanChing Tseng (Complainant) entered into a contract with Respondent for the installation of a new AC condenser and furnace.

On or about August 9, 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 Todd Anderson. After a jobsite inspection, Investigator Anderson 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 notifythe Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 2nd, 2023.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 3 - Uncertain if furnace was replaced with new unit.

Investigator’s Observation: Was able to verify that neither the serial nor models numbers on the furnace in the attic matched those written on the invoice given to the Complainant upon completion of the work. Model and serial numbers on the invoice: R801TA100521MSA/W422209824. Model and serial numbers for the unit in the attic: UGPH- BRJR/DH5D307F139600839. Cannot verify if the unit in the attic is new or the original, only that it is not the unit she was billed for upon completion of the work. *Contractor should install the correct furnace as per contractual agreement.

Governing Rule: ARS 32-1154(A)(2)(a): Departure from or disregard of plans or specifications in any material respect.

. . . . .

Compliance Item: 4 - Two unsuccessful repairs after reporting ceiling waterreported.

Investigator’s Observation: I was instructed by the Homeowner to checkout the primary and secondary drain pans based on two AC company's priorreports. I found them to be inadequately installed with poor workmanship. The secondary drain pan was sloped in the wrong direction and away from the side of the pan where the drain line was attached. *Contractor should correct by appropriate means.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

. . . . .

Compliance Item: 5 - Drywall damaged due to leaking;

Investigator’s Observation: Verified. Observed stains and damage to thehallway ceiling which was in proximity to the AC unit and the incorrectly installed drain pans above. *Contractor should make necessary repairs to the damaged drywall.

Governing Rule: ARS 32-1154(A)(3) Poor work – A contractor shall perform all work in a professional and workmanlike manner.

All errors contained in original.

Following the issuance of the written directive, Respondent failed to make any contact with either Investigator Anderson or Complainant. After the deadline in the directive expired, Investigator Anderson was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(2)(a); Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on February 5, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. An order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on February 5, 2024.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Anderson testified consistently with his observations contained within his written directive.

Complainant testified that Respondent was willing to work with her with regard to Items 4 and 5, but continued to maintain that he replaced the furnace. Complainant further testified that she was able to do some research on the serial numbers from the furnace as further proof that the furnace was not replaced. Complainant further testified that she had to buy a “shop vac” in order to vacuum the drip pans two times a day during the summer so as to prevent further damage from water leakage. Complainant testified that her elderly parents lived with her and it was very difficult to displace them during this time period due to the issues she was having with the AC unit.

Administrative notice is taken of Respondent’s prior License record on February 5, 2024. Such prior License record reflects that Respondent’s License No. 106461 was first issued on March 15, 1995, and is active. Such prior License record also reflects that there were no other open or closed complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.

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 did not install a new furnace as agreed upon. Thus, Respondent did not complete the project in accordance with the plans without Complainant’s consent in a manner that was prejudicial to Complainant. Therefore, Complainant established that Respondent departed from or disregarded the plans in violation of Ariz. Rev. Stat. § 32-1154(A)(2)(a).

The evidence established that Respondent inadequately installed the primary and secondary drain pans. Thus, 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 attempt to complete the corrective work following the Directive being issued. 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. 106461 for a period of 2 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. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 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, February 26, 2024.

/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