ALJDEC decisions subject to certification as final

04F-H0119-ROC · Registrar of Contractors · 2004-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 25, 2004 at 8:30 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Dwyan Woodland. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT

1. Respondent is the holder of a Class K-39 License issued by the Registrar of Contractors. 2. The Complainant experienced a problem with the HVAC system in her residence and notified her home insurance company. 3. The Complainant’s home insurance company then notified the Respondent and the Respondent, in accordance with an agreement with the Complainant’s insurance company, replaced a bad evaporative coli in the Complainant’s residence. 4. Shortly thereafter the Complainant’s A/C unit failed and the Respondent again performed corrective action on the unit. 5. Credible testimony and evidenced established that the Respondent inadvertently damaged the A/C unit’s flywheel during the corrective action. The Respondent then replaced the damaged flywheel. 6. The Complainant continued to experience problems with her HVAC unit and finally retained an alternative HVAC contractor for a repair of the system. 7. Credible testimony and evidence established that the alternative contractor corrected the HVAC system and that the alternative contractor informed the Complainant that the Respondent had failed to perform its work properly. 8. The Complainant then noticed that the interior water damage in her residence was far greater than she had first observed. 9. The Complainant then filed a claim with her homeowner’s insurance company. The homeowner’s insurance company denied coverage on the basis that the interior damage had been caused by water leakage from the HVAC system from the date of the Respondent’s first corrective attempt. 10. The Complainant then notified the Respondent of the interior damage and the Respondent notified its insurance company of the problem and the Respondent’s insurance company conducted an onsite inspection. 11. The Respondent declined to cover the claim on the basis that the Complainant failed to “meet her burden of proof in establishing that the insured (Respondent) was the cause of or responsible for the water damaged sustained…” 12. Credible testimony and evidence, presented at hearing, established that the water damage in the interior of the Complainant’s residence was caused by the continuous seepage of water from the HVAC unit over a period of time from the date of the Respondent first repair effort until the repair by the alternative HVAC contractor. 13. The Respondent is found to be responsible for the proper correction of the interior water damage in the Complainant’s residence, including the plywood flooring, the carpeting and the vinyl flooring. The Respondent shall, utilizing a properly licensed contractor, properly correct the interior moisture damage in the Complainant’s residence. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (3); namely, Rule R4-9-108. RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Respondent’s Class K-39 License be suspended until the Registrar of Contractors receives proof that the Respondent has, utilizing a properly licensed contracted, caused the interior water damage in the Complainant’s residence to be properly corrected. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension not take place and that this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification. Done this day, July 7, 2004

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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