ALJDEC

01F-T0622-ROC · Registrar of Contractors · 2001-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, August 21st, 2001; 1:30 p.m. APPEARANCES: The complainant, Mr. Dale A. Van Ooyen, appeared and represented himself. The respondent was represented by the owner, Mr. Boyce McBride. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent in this case, B and D Air Conditioning, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in Arizona, holding Class C-39 License number 091442. 2. The complainant, Mr. Dale A. Van Ooyen, is a homeowner, residing in Safford, Arizona. He purchased his home from Owens Property in 1998, and took possession in April of 1999. 3. The complainant testified that the first summer he was in his new home he experienced a problem with the air conditioning unit the builder as general contractor, and the respondent as subcontractor, had installed in his home. He testified that it was not cooling the house adequately.

4. Complainant attempted measures the first summer to try to alleviate his discomfort. He had the insulation reworked and improved. However, these measures did not satisfy him. 5. Complainant filed the instant complaint against the respondent with the Registrar of Contractors on or about November 10th, 2001. He complained about the inadequacy of the ductwork and the size of the air conditioning unit. The unit is a 2.5-ton Trane. Complainant testified that the house, which is 1,310 square feet in size, with vaulted ceilings, and several windows, needs a 3-ton unit. 6. Complainant’s complaint was assigned to ROC Inspector Richard C. Allen, who conducted a job-site inspection on January 23rd, 2001. Complainant and his wife were present for the inspection, as was Mr. Boyce McBride, owner of the respondent, and Mr. Jim Owens, of Owens Properties, now QB Construction. Inspector Allen performed a test of the cooling performance of the complainant’s unit, and he found that the unit was functioning properly and cooling adequately, as judged by minimum workmanship standards. Inspector Allen issued an RC-C-007 letter to the complainant dated January 30th, 2001, in which he informed the complainant that due to insufficient evidence to support his claim the registrar’s office would be closing his complaint, unless the complainant had additional evidence. 7. Complainant responded by letter of February 3rd, 2001, in which he claimed to have additional evidence. An administrative hearing was requested. 8. Citation and Complaint issued from the registrar’s office on April 11th, 2001, citing the respondent with possible violations of A.R.S. §32- 1154.A.7. and 3., namely A.A.C. R4-9-108 (Workmanship Standards). Respondent timely filed a written answer to the complaint, and the administrative hearing was held on August 21st, 2001. 9. Complainant produced little in the way of additional evidence at the hearing. He repeated his claim that the unit was too small to adequately cool his house. He pointed out that the load calculations performed by the respondent were done using the model home which has fewer windows than his house; that he was never approached by the respondent about what were his plans for the house, how many people would reside there, etc.; that other neighbors in the subdivision had complained about the same condition with their units, and that the blueprints have no call and there are no specifications for the size of the unit to be installed. 10. Respondent testified and offered at least as much evidence to support his position as complainant offered to support his. Mr. McBride testified that he had conducted two load calculations for complainant’s house; one using the plans given him by the builder, and another by going on-site after construction and taking into consideration all the characteristics of complainant’s house. Mr. McBride calculated that complainant’s house calls for a unit that will generate 18,333 BTU per hour. The 2.5-ton unit installed will produce 18,500 BTU per hour. 11. Remarkably, Inspector Allen revisited the complainant’s house the day before the hearing, August 20th, 2001. He was there and so was Mr. McBride. When Inspector Allen arrived the unit was not operating. He knocked on the door and complainant answered the knock. Inspector Allen informed the complainant he was there to perform a pre-hearing inspection, and test again the cooling capacity of the unit. Complainant refused to admit the inspector on the ground that respondent had not done anything to satisfy him yet. It would seem that if the complainant’s unit was not adequately cooling his house, August would be an ideal month for the revelation of that fact by a proper test conducted by the inspector. It appears that if complainant had a case to make he forfeited his best evidence for making it. 12. The greater weight of evidence is that the 2.5-ton unit was adequate and was properly installed. There is insufficient evidence of improper duct work to find for the complainant. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. The respondent herein is charged with possible violations of A.R.S. §32- 1154.A.7., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in this case is A.A.C. R4- 9-108, Workmanship Standards. There is insufficient evidence in the record to conclude that respondent violated this law. Complainant failed to produce any substantial evidence that the unit was incapable for its intended purpose, or that the ductwork was improperly installed, inadequate or defective. 4. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor that results in another person being substantially injured. There is no evidence to support a conclusion that any act of the respondent was wrongful or fraudulent in this case. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Citation and Complaint number T01-0622, together with the complaint on which it is based, be dismissed. Done this day, September 7th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________ ----------------------- Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488