ALJDEC

00F-0272-ROC · Registrar of Contractors · 2000-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2000. APPEARANCES: Scott and Debbie Blair, Complainants; Aaron Kizer, attorney for both Respondents; Lewis King, Registrar of Contractors Inspector; Karl Heller, D.R. Horton witness; Erik Cote, D.R. Horton witness; Chris Burkhart, Chas Roberts Air Conditioning witness; and Bob Beckett, witness for both Respondents. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________

Scott and Debbie Blair, the homeowners and Complainants in this case, requested a hearing because they believed that the noise from the ground air conditioning units positioned outside a bedroom in their home was too loud in that bedroom. The Complaints also included vibrations in the walls of the bedroom from the units. After workers from Chas Roberts Air Conditioning did several things to improve the problem, it was brought within minimum workmanship standards. Accordingly, by the time of the hearing, there was no basis upon which to recommend discipline against either D.R. Horton’s or Chas Roberts Air Conditioning’s licenses. I recommend that the Complaints in this matter be dismissed. FINDINGS OF FACT 1. Scott and Debbie Blair purchased a home from D.R. Horton, Inc. with an air conditioner installed by Chas Roberts Air Conditioning, Inc. They moved into the home in March 1999. Shortly after moving in, Scott Blair noticed that the noise from the air conditioners was loud in one of the bedrooms. The air conditioners were ground units and had been installed outside that bedroom. 2. On April 21, 1999, Scott Blair filed a Complaint with the Registrar of Contractors against Chas Roberts Air Conditioning. Lewis King conducted an initial inspection of the site on June 11, 1999. He found the bedroom had excessive noise and a vibration in the wall. By Corrective Work Order dated June 18, 1999, he ordered Chas Roberts Air Conditioning to correct the problem using the appropriate means. Chas Roberts Air Conditioning attempted a repair the following day by looping and burying the refrigerant lines outside of the home. This was not satisfactory to Scott and Debbie Blair. 3. Scott Blair filed a Complaint with the Registrar of Contractors against D.R. Horton, Inc. on July 26, 1999 and later amended it to include a complaint about the air conditioning noise in the bedroom. All other issues between the Blairs and D.R. Horton had been settled by the time of the hearing. On October 27, 1999, Lewis King visited the Blair home again and inspected the noise and vibration in the bedroom. At that time he wanted to open the wall and try to determine the cause of it. Because the Blairs would not agree to open the wall, he did not issue a Corrective Work Order about that issue to D.R. Horton. 4. On August 2, 1999, the Chas Roberts Air Conditioning Complaint was closed due to lack of response from the homeowner. It was later reopened. The two Complaints were consolidated prior to hearing as the only remaining issue was that of the noise and vibration in the bedroom. 5. On April 3, 2000, Lewis King visited the home again for a pre- hearing site inspection. He found that, after several repair attempts by the Respondents, the noise level had been reduced considerably in the bedroom and was standard for a room with an air conditioner outside. Though he did not believe an air conditioner should have been placed outside of a bedroom, he was not concerned about the noise level in the room. He did, however, believe that the vibration in the walls was below standards. Without written standards on that particular issue, he believed it inappropriate to have any vibration in the walls. He acknowledged that the vibration was slight enough that you could only feel it in certain places in the wall and that it would not rattle a picture though it might move one. He conjectured that the vibration could add to the noise of the air conditioner. 6. The Blairs remained concerned about the noise level in the bedroom. They intend to have a baby sleep in that room someday and are concerned it may not sleep well. They measured the noise level in the room at 46 decibels. An independent acoustics expert measured the room at 42 decibels. Although Respondents pointed out that the Registrar of Contractors has no specific standards for noise levels in a bedroom, the Blairs submitted information that the Federal Housing Authority has standards for community noise in approving locations for Housing and Urban Development (“HUD”) homes. These standards do not allow construction of HUD homes in areas where community noise (for example, street traffic) reaches an Ldn value of 40 and sometimes 30 for a single family home. The Ldn value is the average day and night noise level adjusted for the need for a quieter home at night by adding an additional 10 points to the decibels for night noise. While the Blairs had decibel readings for the room when the air conditioner was on, they did not have average day and night noise levels or an Ldn value for the home. Although an air conditioner may come on at night and make the decibels higher, it was not established that the noise was unacceptably high either by HUD standards or by any other standard. While the Blairs felt the noise was too high, no one else visiting the home, even the Registrar of Contractors Inspector, thought that it was too high for the purpose of sleeping in the room. 7. Regarding the vibration level in the wall, there was no evidence that any measurable standard exists for vibration in a wall. It was established, however, that some vibration is always present with ground air conditioners because the refrigerant lines run up the walls to the ceiling for disbursement through the home. While every effort is made to reduce the vibration to acceptable levels, the vibration is never fully eliminated. Additionally, the Blairs offered no basis for finding that the vibration interfered with their use and enjoyment of the home. 8. Even though the Registrar of Contractors Inspector and the Blairs opined that air conditioning units should not be placed outside bedrooms, and even though they offered booklets on installing air conditioners that recommended against it, there are no standards against such a practice in the Registrar of Contractors Minimum Workmanship Standards, and the home’s architectural plans were approved by the city prior to construction. The home is part of a planned community where several other homes also have air conditioners outside this bedroom. If the practice was unacceptable, the city should have noted it. The weight of the evidence does not support a finding of impropriety regarding the placement of the air conditioners. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaints issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 7. Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. In this regard, the Registrar of Contractors generally allows contractors a reasonable opportunity to complete necessary remedial work. 8. Regarding Chas Roberts Air Conditioning, the Blairs have failed to establish any violation of the above laws and rules. The air conditioners were installed according to properly approved plans and any excess noise and vibration was properly addressed. The home, in particular the bedroom in question, is fit for usage as a sleeping room with noise from the air conditioners within acceptable limits. 9. Regarding D.R. Horton, the Blairs have failed to establish any violation of the rules and laws as well. In addition, the attorney for Respondents moved prior to hearing that the charge of violation of A.R.S. § 32-1154(A)(23) be dismissed as there was no Corrective Work Order to use as a basis for the violation. It appears, after a thorough review of the record, that the motion would properly be granted. However, since no basis for the Complaints was established at all, I recommend that the entire Complaint be dismissed in each case. RECOMMENDED ORDER Because the Blairs have brought forth insufficient evidence to establish a violation of any disciplinary rule or law, I recommend that the Registrar of Contractors dismiss the Complaints against Respondents D.R. Horton and Chas Roberts Air Conditioning. Done this day , April 12, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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