ALJDEC - Licensing

2023A-09109-CHC-ROC · Registrar of Contractors · 2025-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Heather Wruck,

COMPLAINANT

Endurance Heating & Cooling, LLC

License No. ROC 334784,

and

Pima Ventures LLC

License No. ROC 291256,

RESPONDENTS

No. 2023A-07141-CHC-ROC

No. 2023A-07216-CHC-ROC

No. 2023A-09109-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2024

APPEARANCES: Complainant Heather Wruck appeared on her own behalf. Michael Skidmore, Owner, appeared on behalf of Respondent Endurance Heating & Cooling LLC. Hector Rubio, Qualifying Party, appeared on behalf of Respondent Pima Ventures LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant Exhibit A.

_____________________________________________________________________

FINDINGS OF FACT

Respondent Endurance Heating & Cooling, LLC (Endurance) is the holder of License No. 334784 issued by the Arizona Registrar of Contractors (Registrar).

Respondent Pima Ventures LLC (Pima ) is the holder of License No. 291256 issued by the Registrar.

On or about April 20, 2022, KMS Enterprises contracted with either Endurance or Pima to install a heat pump in a mobile home owned by KMS Enterprises.

On or about December 16, 2022, Heather Wruck (Complainant) entered into a contract to purchase the mobile home from KMS Enterprises. The contract included the following statement: “See attached list and invoices for work completed at this home by Pima Ventures LLC, ROC# 291256”. An invoice to KMS Enterprises dated April 5, 2022, indicated that Endurance installed a heat pump in place of a furnace in the mobile home.

On or about June 24, 2023, the Registrar received a Complaint against Endurance from Complainant alleging poor work with respect to the heat pump. This complaint was designated as Case Number 2023-07141.

On or about June 27, 2023, the Registrar received a Complaint against Pima from Complainant alleging poor work with respect to the heat pump. This complaint was designated as Case Number 2023-07216.

The Registrar assigned the complaints to Investigator John Smith. After jobsite inspections, Investigator Smith issued written directives to Endurance and Pima.

On or about June 30, 2023, Investigator Smith issued written directives to Endurance with respect to Case Number 2023-07141 and to Pima with respect to Case Number 2023-07216 that provided, in pertinent part, 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 July 21, 2023.

RESTRICTIONS

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

DIRECTIVE REQUIREMENTS

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

The Respondent is to obtain any and all required building permits from the Local Building Authorities.

If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to satisfy all requirements of the local building official, and to submit a copy of the approved inspection results to the ROC Investigator.

Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...

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...

Building Code: IRC (International Residential Code) R105.1: “Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit.”

Complaint Item 1: “The work invoice states that there is air flow in all rooms, there is not... The heat pump itself is not operating correctly. The cooling compressor coils either freeze up, make a noise, and stop working, or they don't cool at all...My system is now acting up with the 100+ degree weather coming.”

Investigator’s Observations: Verified.

The natural gas fueled furnace was removed and a split system heatpump was installed.

This is permit required work that was performed without a permit being obtained.

The system is not operating correctly.

At the time of the ROC jobsite inspection:

The outdoor temperature was approximately 105 degrees.

Indoor air temperature was approximately 85 degrees.

Air at the return air grill / filter was approximately 85 degrees.

Air temperature coming out of the ducts was approximately 79 degrees.

The evaporative coil was partially frozen over.

The air flow through the ducts is extremely limited/restricted.

There is very poor air flow throughout the house.

Governing Rule: A.R.S. § 32-1154(A)(2)(b): Departure from or disregard of: (b) A building code...

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...

Warning Letter: Performing permit required work without a permit being obtained.

Investigator’s Observations:

This project including removing a natural gas fueled central furnace and installing a split system heatpump.

This is permit required work that was performed without a permit being obtained.

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code...

Governing Rule: A.R.S. § 32-1154 (A)(3) - R 4-9-108(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 and professional industry standards...

REQUIRED CORRECTIVE ACTION:

The Respondent is to obtain any and all required building permits from the Local Building Authorities prior to making corrections listed in this Directive.

On or about July 26, 2023, Investigator Smith conducted a compliance jobsite inspection. Investigator Smith observed the status of the home as follows:

Compliance Jobsite Inspection General Notes:

Simultaneous jobsite inspections for complaint 2023-07141 and 2023-07216.

. . . .

As stated on the Directive:

The Respondent is to obtain any and all required building permits from the Local Building Authorities.

. . . .

Compliance Inspection Findings for this item: This has NOT been resolved.

The respondent has provided no information indicating a permit application has been submitted to the local building official.

As stated on the Directive:

Complaint Item 1: “The work invoice states that there is air flow in all rooms, there is not... The heat pump itself is not operating correctly. The cooling compressor coils either freeze up, make a noise, and stop working, or they don’t cool at all...My system is now acting up with the 100+ degree weather coming.”

Investigator’s Observations from the initial inspection: Verified.

. . . . .

Compliance Inspection Findings for this item: This has NOT been corrected. Some work has been performed; however, the current conditions do not meet ROC Workmanship Standards.

The system is not adequately cooling the house:

The outdoor temperature at the time of this inspection was 108 degrees.

The interior air temperature at the time of this inspection was 81 degrees.

The thermostat was set to 75 degrees.

The system was not capable of lowering the interior air temperature to below 81 degrees.

Arizona Workmanship Standards requires the A/C system to be able to cool the interior air temperature

to 30 degrees cooler than outdoor temperatures.

The thermostat has been removed from its previous location without patching/repairing the wall.

The system is not operating/cooling as it should:

Air at the return air grill / filter was approximately 82 degrees.

Air temperature coming out of the ducts was approximately 70 degrees.

• There is still poor air flow at some air diffusers.

On or about August 9, 2023, the Registrar received a Complaint against Endurance from Complainant alleging poor work with respect to the heat pump. This complaint was designated as Case Number 2023-09109. In the complaint, Complainant stated the following:

On or about August 24, 2023, Investigator Smith issued a written directive to Endurance with respect to Case Number 2023-09109 that provided, in pertinent part, as follows:

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “When attempting to resolve another issue with the compressor/coil unit, the drain hose was compromised and has leaked all over the floor around the unit.

The subfloor is ruined, I had to pull the carpet up to dry it out

After pulling the carpet, I found out the door enclosing the space with the unit in it, does not close or latch properly, the carpet was holding it closed”

Investigator’s Observations: Verified.

The respondent’s invoice for this project is dated 4/5/2022

Based on the respondent’s invoice, the respondent installed a new HVAC system 4/5/2022

The Sellers Property Disclosure Statement also states a new HVAC system was installed.

The Sellers Property Disclosure Statement is signed by the seller, Mathew Skidmore, 12/16/2022

Based on the sellers Property Disclosure Statement, this house was unoccupied at the time of the HVAC installation, and remained unoccupied until purchase and occupancy by the current property owner, the complainant.

During the investigation of the previous complaint, there were no condensation leaks visible or noted.

The respondent performed corrective work between the dates of 6/30/2023 and 7/26/2023

After the completion of that corrective work, the system was still not functioning properly or within minimum industry standards.

As of the date of this inspection, there is condensation leaking from the inside air handler, and causing damage to the floor, floor coverings, and floor structure.

The actual source of the condensation leak is not readily visible; however, the primary drain pan is not overflowing. Additionally, there is some condensation water dripping outside the primary drain pan.

There is standing water, outside the primary drain pan, in the upper and lower compartments of the air handler.

The floor in the hallway, living room, and laundry room is damaged, soft, and currently wet.

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.

Following the issuance of the written directive, Endurance made not effort to perform any corrective work. After the deadline in the directive expired, Investigator Smith was notified no corrective work had been performed.

In Case Number 2023-07141 and Case Number 2023-07216, the Registrar issued a Citations against Endurance and Pima charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B); and A.R.S. § 32-1154(A)(22).

In Case Number 2023-09109, 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).

Investigator Smith testified that Matthew Skidmore was connected to all the entities involved in this matter – KMS Enterprises, Endurance, and Pima. Mr. Skidmore was the owner of KMS Enterprises, which was a member of Pima. Mr. Skidmore was also a trustee of the Skidmore Family Living Trust, a Parent Entity of Endurance.

Complainant testified that she had to pay out of pocket to have the issues corrected.

Mr. Skidmore appeared in his capacity as a co-owner of Endurance. Mr. Skidmore stated that Endurance no longer had a qualifying party. Mr. Skidmore indicated that Joseph Moore was the qualifying party at the time of the complaint and Albaro Lopez Varela was the subsequent qualifying party. Mr. Skidmore stated that Endurance was “basically shuttered”. Mr. Skidmore testified that Endurance did not perform any ductwork on the project originally. Mr. Skidmore stated that in July 2023, Endurance completely reinstalled the ducts that were damaged. Mr. Skidmore also asserted that Endurance obtained a permit and passed the inspection in August 2023.

Mr. Rubio testified that Pima did not perform any HVAC work on this project.

Administrative notice is taken of Endurance’s prior License record on January 27, 2025. Such prior License record reflects that Endurance’s License No. 334784 was first issued on September 15, 2021, and is active. Such prior License record also reflects that there were three open complaints and no prior complaints against the license.

Administrative notice is taken of Pima’s prior License record on January 27, 2025. Such prior License record reflects that Pima’s License No. 291256 was first issued on March 28, 2014, and is active. Such prior License record also reflects that there were two open complaints and one prior resolved/settled complaints against the license.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The interconnectedness of Mr. Skidmore, KMS Enterprises, Endurance, and Pima created a situation in which each could blame the other for the work performed with the goal of all of them avoiding responsibility. Mr. Skidmore completed the sales contract that indicated Pima performed the HVAC work with an invoice from Endurance attached. Because neither Endurance or Pima admitted that they performed the defective work on the project and evidence supported a conclusion that both were equally culpable.

The evidence established that Endurance and Pima failed to obtain a required permit and, therefore, did not complete the project in accordance with the applicable building code in a manner that was prejudicial to Complainant. Therefore, Complainant established that Endurance and Pima departed from or disregarded applicable building code in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Endurance’s and Pima’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Endurance and Pima did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) and (B).

The evidence established that Endurance and Pima did not complete the corrective work following the directives being issued. Therefore, Complainant established that Endurance and Pima failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 Endurance’s License No. 334784 and Pima’s License No. 291256 for a period of five days each.

It is further recommended that the Registrar require Endurance and Pima to pay the sum of $500.00 each as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Endurance and/or Pima 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 its license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Endurance or Pima, as defined in A.R.S. § 32-1101(A)(5), unless it 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 27, 2025.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Heather Wruck

[email redacted]

John Smith

[email redacted]

Pima Ventures LLC

[email redacted]

Endurance Heating & Cooling, LLC

[email redacted]

By: OAH Staff