ALJDEC

99F-3131-ROC · Registrar of Contractors · 1999-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 1999 APPEARANCES: Complainant Norma Martell-Garcia appeared on her own behalf. Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

This matter came on for a regularly scheduled hearing on October 18, 1999 at 9:00 a.m. The Administrative Law Judge notes for the record that the start of the scheduled hearing was delayed for approximately fifteen (15) minutes so as to allow added time for appearance by or on behalf of Respondent Hispanic Air Conditioning and Heating, Inc. Respondent failed to appear, and further failed to inform the Office of Administrative Hearings of any reason which would establish good cause for failing to appear. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT On or about November 15, 1998, Complainant Norma Martell-Garcia entered into an agreement with Respondent Hispanic Air Conditioning and Heating, Inc. under which Respondent agreed to install at Ms. Martell-Garcia’s residence (3821 West Holly, Phoenix, Arizona) a new heating and cooling system (the “System”). Respondent installed the System over an approximately one and one-half day period in the third week of November, 1998. The heating component of the System worked satisfactorily. However, when Ms. Martell-Garcia first began to use the cooling component of the System in approximately April/May 1999, she discovered it failed to work properly. Ms. Martell-Garcia’s major complaint was that the System did not adequately cool her residence. Ms. Martell-Garcia further reported undue humidity, abnormal noisiness, and one instance of condensate leaking onto her floor. Ms. Martell-Garcia contacted Respondent on numerous occasions regarding problems with the air conditioning. Respondent attempted to repair the System, but Respondent’s efforts were either ineffective or of only a short- term nature. On or about April 20, 1999, the City of Phoenix inspected the System and found that it violated six provisions of the Phoenix city code (the specific violations are included as items a-f in the list of deficiencies identified in Paragraph 9, below). Respondent received a copy of the Inspector’s Notice. After receiving the Inspector’s Notice, Respondent dispatched someone to Ms. Martell-Garcia’s residence to remedy the violations. The uncontroverted evidence was that this person told Ms. Martell-Garcia the repairs were complete and that she could schedule a second inspection; however, when the second inspection took place on or about May 7, 1999, it was revealed that Respondent had failed to remedy any of the violations. On May 11, 1999, Ms. Martell-Garcia filed a complaint against Respondent with the Registrar of Contractors. On May 27, 1999, the Registrar of Contractors, through inspector Mel Purchase, conducted a jobsite inspection at Ms. Martell-Garcia’s residence. Ms. Martell-Garcia was present for the inspection. Present for the inspection on Respondent’s behalf were Mr. Juan Ordonez and a Mr. Rodriguez. As a result of his inspection, Mr. Purchase identified nine (9) items which required corrective action as follows: a. Respondent used a white wire as a power leg in the breaker panel; Phoenix city code requires black wires to be used as power legs; b. The heating unit was too large for the area in which it was installed and did not have proper clearance on the sides and front; c. Respondent used a 4” pipe to provide outside combustion air to the heating unit; Phoenix city code requires use of an 8” pipe; d. Respondent used white wires as power legs for the air conditioning disconnect; power legs must be black or red; e. Respondent failed to install the outside GFI circuit on a separate circuit (i.e., Respondent split a 220 amp line into two 110 amp lines, one of which was used for the GFI circuit); f. Respondent failed to properly vent and trap the condensate line; g. The air return is too small; h. Respondent failed to provide Ms. Martell-Garcia with warranty documents; and i. Respondent’s work failed to pass the City of Phoenix’s inspection. Mr. Purchase determined that a tenth item – leaking of the air handler condensate pump – had been corrected as of the date of the jobsite inspection. However, Ms. Martell-Garcia testified at the hearing to further problems with the condensate pump, and Mr. Purchase confirmed through his testimony at the hearing that the pump is likely defective and in need of replacement. On or about June 2, 1999, the Registrar of Contractors issued a corrective work order to Respondent requiring that Respondent take prompt corrective action with respect to the nine (9) items identified in paragraph 9, above. Respondent failed to do so. On July 7, 1999, the Registrar of Contractors issued a citation and complaint against Respondent’s license (a copy of which was sent to Respondent by certified mail, return receipt requested) charging Respondent with violations of A.R.S. § 32-1154(A)(2), (7), (17), (23) and (3) (namely, A.A.C. R4-9-108). Mr. Purchase conducted a second jobsite inspection on October 14, 1999. Mr. Purchase confirmed at the hearing that none of the items listed in the corrective work order had been repaired or otherwise remedied. Mr. Purchase testified that Respondent’s local office is closed and that mail to that office is returned undeliverable. As set forth in the Citation and Complaint issued by the Registrar of Contractors in this matter, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent. Said notice revealed, among other things, pending revocation of Respondent’s license in two separate matters. Therefore, Respondent’s prior record is deemed to be poor and thus is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW The allegations in the Citation and Complaint concern A.R.S. § 32- 1154(A)(2) (failure to follow plans and specifications), (A)(7) (wrongful or fraudulent acts), (A)(17) (contracting beyond the scope of the licensee’s license), (A)(23) (failure to take corrective action) and (A)(3) (violation of any rule adopted by the registrar) (here, A.A.C. R4-9-108, workmanship standards). The evidence presented by the Complainant was not refuted since the Respondent presented no evidence in its own behalf. In view of this, violations of A.R.S. § 32-1154(A)(3) (i.e., A.A.C. R4-9-108), (A)(7) and (A)(23), are found. No violations of A.R.S. § 32-1154(A)(2) or (17) are found because no evidence was presented as to the plans and specifications which Respondent allegedly failed to follow, nor was there evidence or explanation presented as to how Respondent had contracted beyond the scope of its license. RECOMMENDED ORDER In view of the foregoing, with particular emphasis on the established statutory violations, Respondent’s complete failure to comply with the corrective work order, Respondent’s apparent cessation of business and its pending license revocations, it is recommended that Respondent’s Class C License (No. 132658) be revoked on the effective date of the Order entered in this matter.

Done this day, October 19, 1999

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826