ALJDEC

00F-1838-ROC-res · Registrar of Contractors · 2000-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On September 7, 2000 at 9:00 a.m., a hearing was held to determine if the Respondent had violated provisions of the A.R.S. §32-1154(A). Ken Van Cott appeared on behalf of the Respondent. The Complainant failed to appear. The record was kept open until approximately 9:25 a.m. to allow for the appearance of the Complainant or the receipt of any information which would constitute good cause for the Complainant’s absence or delay. No such information was received from or on the behalf of the Complainant. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT 1. The Complainant failed to appear for the hearing scheduled on September 7, 2000, at 9:00 a.m. at the Office of Administrative Hearings located at 1400 West Washington Street, Suite 101, Phoenix, Arizona. The Notice of Hearing correctly stated the date, time and place of this hearing. The Notice of Hearing was sent by certified mail to the Complainant at 5017 E. Winchcomb, Scottsdale, Arizona 85254. The undersigned Administrative Law Judge finds that the Complainant was properly noticed for this disciplinary hearing.

2. Mr. Van Cott is the Respondent’s president. Mr. Van Cott testified that the Respondent was asked by American Home Shield to inspect the Complainant’s 5 ton capacity package Trane heat pump. Mr. Van Cott testified that on or about August 6, 1999, he visited the Complainant’s home. Mr. Van Cott testified that the Complainant complained that the southwest portion of her home was not receiving sufficient air flow to properly cool that portion of the home.

3. Mr. Van Cott testified that he performed a temperature split with a digital thermometer and found the split to be normal within industry standards. Mr. Van Cott testified that he inspected the ducts in the Complainant’s attic and found that a 20 inch piece of pipe in the duct system was ovalized or crushed. Mr. Van Cott testified that he informed the Complainant of his findings. Mr. Van Cott testified that the Complainant told him that several technicians had been in the attic.

4. Mr. Van Cott testified that he never inspected the Complainant’s evaporative cooler. Mr. Van Cott testified that he never billed the Complainant for the inspection. Mr. Van Cott testified that he informed the Complainant that he would charge $150.00 to repair the duct system. Mr. Van Cott testified that he was never asked to repair the duct work.

5. Mr. Van Cott testified that he informed American Home Shield of his findings. Mr. Van Cott testified that he is aware of at least four other contractors that have inspected the Complainant’s home.

6. The undersigned Administrative Law Judge finds the testimony of Mr. Van Cott to be credible. CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Complainant has failed to appear and present evidence supporting her position. The Complainant has failed to meet her burden of proving that the Respondent has violated provisions of A.R.S. §32-1154(A). Accordingly, the undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s license pursuant to A.R.S. §32- 1154(A)(2),(3),(7) & (16).

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 00-1838 be dismissed.

Done this day, September 7, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By ___________________________ -----------------------

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