ALJDEC

01F-0820-ROC · Registrar of Contractors · 2001-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2001 APPEARANCES: Complainant appeared through its owner and qualifying party, Charles Randel and Respondent appeared through its owner, listed on the Registrar of Contractors records, and qualifying party, Daniel Trimble. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. As part of his new home construction project, Complainant retained the services of Respondent for specified air-conditioning related work. Complainant alleges a certain deficiency in the work performed by Respondent and same is discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Respondent completed his air-conditioning related work in the spring of 2000. The air-handler was installed in the attic of the home and the air-conditioning unit was installed on the ground adjacent to the home.

b. Sometime in the summer of 2000 Complainant claims that he observed rusty colored water, emanating from the condensation top drain run- off, which was running down the exterior stucco wall. c. Since Complainant was concerned referable to the rusty colored water, he attempted to contact Respondent to accomplish any needed remedial work. d. Complainant contends that he called Respondent’s telephone number and left numerous messages on an answering machine, requesting that remedial work be performed. After receiving no response to said messages, Complainant attempted to send a facsimile transmission to Respondent. While attempting said facsimile transmission, Respondent’s daughter answered the telephone and advised Complainant that he should not be calling on that telephone number, due to the fact that her mother was in the hospital in a very critical condition. Respondent’s daughter also advised Complainant that said facsimile telephone line was to remain open for communication with the hospital only and she then terminated the conversation abruptly. e. The next day Complainant again called Respondent on the aforementioned facsimile telephone number. Respondent’s daughter again answered the telephone and advised that she would give her father the message. f. When Complainant did not receive any communication from Respondent in response to the above-mentioned telephone calls, he ultimately hired another contractor to repair the problem and, in this regard, incurred costs of $108.92. Although an invoice for these costs was entered into evidence, the contractor who performed the remedial work did not appear for the hearing and thus, was not available for Respondent to cross examine. Accordingly, this Tribunal cannot assess a significant amount of evidentiary weight to this document. g. Contrary to Complainant’s assertions, Respondent contends that he never received any messages from Complainant on his answering machine. Moreover, he asserts that he not only received the message from his daughter regarding the telephone calls that she received on the facsimile phone number but that he made three trips to the house in question to investigate the complaint. However, he was unable to make any repairs, due to the fact that the house was locked-up and Complainant was not present. h. Respondent further asserts that when he appeared at the house in response to the messages he received from his daughter, he left either a note or a door hanger with his name and telephone number, advising that he had appeared on the site but was unable to perform any remedial work due to a lack of access. Respondent contends that he received no response from Complainant in regard to the notes he left at the house. i. Respondent also maintains that his work at the house passed all inspections by the local building authority and that it would have been near impossible for him to have improperly installed the drain lines in question, as alleged in the above-described $108.92 invoice received by Complainant from the subsequent contractor. He believes that the insulation company retained by Complainant was sloppy in their application of “blown-in” insulation and that such material got into the air-handler unit, plugging the drains lines, thereby possibly causing the water to flow into a specified metal pipe which created the problem described by Complainant.

3. As demonstrated by the foregoing findings, the parties presented sharply conflicting testimony regarding whether Respondent had adequate notice and an adequate opportunity (i.e. access) to correct the claimed deficiency in the air-conditioning system installed by Respondent. Evidence of record established that the parties experienced a serious breakdown in their ability to communicate with one another and said communication breakdown effectively denied Respondent a reasonable opportunity to investigate and correct, if necessary, any aspect of his installation work which was alleged to be deficient.

4. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. If Complainant wanted Respondent to perform remedial work, he needed to assure that Respondent had access to the area of the home in question and should have responded to the notes that Respondent left at the house. Based on the evidence of record, Complainant failed to establish that Respondent violated the spirit and intent of the applicable charged sections of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, February 5, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater 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