ALJDEC

00F-G0271-ROC · Registrar of Contractors · 2000-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 24, 2000, at 1:30 p.m., a hearing was scheduled to determine if Respondent had violated provisions of A.R.S. (32-1154(A). Complainant, Galen Walker was present. Respondent was represented by its owner, Zerril Perkins. Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT Complainant had hired Respondent on several occasions dating back to November 1997, to service both of Complainant’s air conditioning units at Complainant’s house located at 13064 North 100th Place, Scottsdale, Arizona. Complainant alleges that Respondent is in violation of the state’s contracting laws because Respondent did not locate leaks in Complainant’s cooling system and failed to return to Complainant’s home to perform a thorough leak check. On November 12, 1997, Respondent received a “no cooling” call from Complainant and serviced Complainant’s downstairs air conditioning unit for the first time. Respondent repaired the non-functioning portion of the unit. On July 21, 1998, Respondent received another “no cooling” call from Complainant and serviced his downstairs unit for a second time, adding nine pounds of refrigerant. On December 3, 1998, Respondent serviced Complainant’s upstairs air conditioning unit for the first time due to a “no cooling” call, and added four pounds of refrigerant. Respondent noticed pin hole leaks due to the improper installation of the unit, information which was communicated to Complainant. On May 12, 1999, Respondent serviced both units on a “no cooling” call. Respondent added more refrigerant to both units, 16 pounds to the downstairs unit and 3 pounds to the upstairs unit. Respondent testified that he was not called to perform a leak check. Respondent testified that it would have no reason to conduct a leak check because there was no history of possible leaks of the units. The first call on November 12, 1997 had nothing to do with refrigerant. The next two calls dealt with each unit separately. However, Respondent did note that a leak check should be performed in the future due to the large amount of refrigerant needed to service the units in the short time span from July 21, 1998 through May 12, 1999. Respondent credibly testified that he told Complainant that the addition of the refrigerant would keep Complainant’s house cool for the summer months, and that after the summer, Respondent would return to perform a leak check. Complainant was billed $387.30 at that time for the May 12, 1999 service call. However, Complainant did not pay the bill because Complainant was unhappy with Respondent’s technician’s work. Respondent agreed that Complainant could suspend payment until Respondent returned to Complainant’s house after the summer to inspect the technician’s work. On October 27, 1999, Respondent returned to Complainant’s house to perform an inspection of the work it previously performed. Respondent found nothing wrong with such work. However, Respondent did find signs of leaks. Respondent did not charge Complainant for this service call. Respondent represented at that time, that he would schedule a return call in several weeks to perform the necessary leak check. Complainant paid Respondent the outstanding balance from May 12, 1999, in the amount of $387.30. Complainant was aware that he would be charged additionally for the future leak check. Respondent failed to schedule a date for the leak check and therefore did not return to Complainant’s house to perform this work. The undersigned Administrative Law Judge finds that Respondent inadvertently forgot to schedule this return call. On December 9, 1999, Complainant hired another contractor to perform the leak check. The contractor found four leaks in the upstairs unit and five leaks in the downstairs unit. Complainant paid $180 for the service call.

CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence.[1] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] 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.”[3] The undersigned Administrative Law Judge concludes based upon the facts presented herein, that Respondent’s sole error was forgetting to schedule a return appointment for the leak check. This reflects poorly upon Respondent’s business practices. It does not amount to a violation of the law. Further, Complainant was not harmed by Respondent’s failure to return to the house to perform a leak check because Complainant hired another contractor to perform such work and the evidence fails to establish that Complainant has incurred any additional expense or has been substantially harmed by Respondent’s inadvertent failure to schedule the leak check. Therefore, there is an insufficient showing by Complainant that Respondent acted wrongfully or fraudulently within the meaning of A.R.S. (32- 1154(A)(7). The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has not violated any of the provisions of A.R.S. (32-1154(A)(7), as charged in the Citation and Complaint.

RECOMMENDED ORDER Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Citation and Complaint against Respondent in Case No. G00-0271 be dismissed.

Done this day, April 26, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). [2] Morris K. Udall, Arizona Law of Evidence, (5 (1960). [3] Black’s Law Dictionary, 1182 (6th ed. 1990).

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