ALJDEC - Licensing

2024A-06945-CHC-ROC · Registrar of Contractors · 2024-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Suusan Depew,

COMPLAINANT

v.

Dynamic Comfort LLC

License No. ROC 323779,

RESPONDENT

No. 2024A-06945-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2024

APPEARANCES: Complainant Suusan Depew appeared via Google Meet. Eric Lawler appeared on behalf of Respondent Dynamic Comfort LLC. Registrar of Contractors Investigator John Smith appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit 1 and the Notice of Hearing packet were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Dynamic Comfort LLC (Respondent) is the holder of License No. 323779 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 29, 2023, Complainant hired Respondent to install a tankless water heater in her home in Tucson, Arizona. The contracted amount was $5,350.00.

On or about June 18, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the present complaint to Investigator John Smith. The jobsite inspection was performed on July 24, 2024.

Investigator Smith then issued a Written Directive on or about July 24, 2024, which 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 Friday, August 9, 2024.

...

DIRECTIVE REQUIREMENTS

You are directed to:

• Obtain all necessary permits from the local building authorities

• Comply with all requirements of the manufacturer’s installation instructions

• Satisfy all requirements of the local building authorities

• Remedy the following violations by the appropriate means:

Complaint Item 1: “The tankless water heater was installed but not checked out within the home to see that it worked properly”

Investigator’s Observations: Verified.

This property is located in Pima County.

Replacing a water heater in Pima County is permit required work.

This water heater was installed without the necessary permit being obtained from the local building official.

This water heater was not inspected by the local building official.

The water heater is not installed in accordance with the manufacturer’s installation instructions.

Conditions on site:

• The original 1/2 inch rigid gas line, is supplying a 1/2 inch corrugated connector, which is supplying the water heater.

o As stated in the manufacturer’s installation instructions:

• Do not use 1/2 inch corrugated connectors.

• Gas line supplying the water heater is to be a minimum of 3/4 inch.

• Use of 1/2 inch gas line may be used, only if approved by the local jurisdiction.

• There is no sediment trap in the gas line supplying the water heater.

• There is no pressure relief valve installed.

o As stated in the manufacturer’s installation instructions:

• To complete the installation, you must install an approved 3/4 inch, maximum 150 PSI pressure relief valve on the hot water outlet.

• The condensate line installed is a small diameter flexible clear rubber hose, which includes a portion with a positive slope.

o As stated in the manufacturer’s installation instructions:

• Use only corrosion-resistant material for the drain line, such as PVC or CPVC. Do not reduce the size of this fitting or the drain line to less than 1/2 inch.

• The condensate line must have a negative slope to drain properly.

Note: This is not an all-inclusive list of deficiencies.

Governing Rule: A.R.S. § 32-1154(A)(2): 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...

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract

Investigator’s Observations:

As stated by the complainant, no written contract was provided.

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten- point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor’s designated representative.

This paragraph does not apply to a person who is subject to and complies with section 12-1365.

Governing Rule: A.R.S. § 32-1154(A)(12) Namely, A.R.S. § 32-1158(B): When a contractor and an owner sign a contract, the contractor shall provide the owner with a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a contract form (for use on future projects) that complies with A.R.S. § 32-1158

Performing permit required work without a permit being obtained

Investigator’s Observations:

This project included removing a traditional tank water heater with a tankless water heater.

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

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...

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.”

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.

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.

Display of License

Investigator’s Observations:

The respondent’s Invoice does not include the respondent’s ROC number.

Governing Rule: A.R.S. § 32-1154(A)(12) Namely A.R.S. § 32-1124(B) Display of License

REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance with A.R.S. § 32-1124

Working beyond scope of License

Investigator’s Observations:

The respondent has a CR-39 Air Conditioning and Refrigeration License.

This project included removing a traditional tank water heater with a tankless water heater.

Work performed under this contract requires a CR-37 Plumbing License.

Governing Rule: A.R.S. § 32-1154(A)(16): Knowingly contracting beyond the scope of the license or licenses of the licensee...

(All errors contained in the original)

On August 16, 2024, the Registrar issued a Citation against Respondent, 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); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1124(B); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about August 21, 2024, Respondent submitted an Answer to the Registrar.

On or about August 27, 2024, a Notice of Hearing was issued setting a hearing on October 4, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Smith testified as to the Registrar’s involvement and the above timeline and findings from his inspections.

Investigator Smith testified that on July 10, 2024, he sent Respondent Warning Letters regarding lack of permit, lack of a contract, display of license and contracting outside of the scope of license.

In addition, Investigator Smith testified that there was no representative from Respondent at the jobsite inspection, and that no corrective work had been performed.

Investigator Smith also testified that the water heater was not installed per manufacturer’s instruction and highlighted those issues from the Written Directive.

Finally, Investigator Smith testified that he received a new sample invoice from Respondent which satisfied the display of license issue, but it still did not resolve the elements of a contract.

Ms. Depew testified that the license number was not displayed on the original invoice, but she later received an update invoice with the license number displayed.

Ms. Depew testified further that the initial setting was 150 degrees which burned her disabled brother, and only later found out that the proper setting should have been 120 degrees.

In addition, Ms. Depew was frustrated that she was not given the instruction manual for the water heater, and that it was not producing hot water at every faucet,

Mr. Lawler testified on behalf of Respondent. He testified that this was his first and only customer with a complaint.

Mr. Lawler further testified that he was unaware the a permit was needed for the work, and that he found out that a junior technician sold Ms. Depew the water heater and performed the installation.

Finally, Mr. Lawler testified that he was sorry that he “stepped out of his lane”, and that he would not do the same again.

Administrative notice was taken of Respondent’s prior License record on October 18, 2024. Such prior License record reflected that Respondent’s License No. 323779 was first issued on March 9, 2019, and reflected that there was one open case, namely the present case, and “one resolved/settled case”.

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 preponderance of the evidence established, and without argument from Respondent, that there was no permit acquired in violation of A.R.S. § 32-1154(A)(2)(b) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).

The preponderance of the evidence established, and without argument from Respondent, that Respondent’s work, was not completed properly as the tankless water heater was not installed per the manufacturer’s instructions in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The preponderance of the evidence established, and without argument from Respondent, that there was no contract in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158.

The preponderance of the evidence established, and without argument from Respondent, that the original invoice did not correctly display Respondent’s license number in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1124(B). However this has been corrected, and Respondent has inserted the same on his invoices going forward.

The preponderance of the evidence established, and without argument from Respondent, that Respondent was in violation A.R.S. § 32-1154(A)(16), as his license did not allow for the installation of water heaters,

The preponderance of the evidence established, and without argument from Respondent, that Respondent failed to complete the corrective work following the Directive being issued. Therefore, Respondent 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 Respondent’s License No. 323779 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that Respondent provide a sample contract which complies with the statute to the Registrar within 30 days following the effective date of the Registrar’s final order. Failure to do so will result in a continued suspension until satisfactorily completed.

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, October 18, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Dynamic Comfort LLC

[email redacted]

Suusan Depew

[email redacted]

By: OAH Staff