ALJDEC decisions subject to certification as final

05F-T1235-ROC · Registrar of Contractors · 2005-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13th, 2005; 1:30 p.m. APPEARANCES: Complainants, Mr. Richard and Ms. Mary Brodesky, appeared and represented themselves. Respondent, Casas Adobes Heating and Cooling, Inc., was represented by Mr. Felix Contreras, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Casas Adobes Heating and Cooling, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-39 License number 167359. 2. Complainants, Mr. Richard and Ms. Mary Brodesky, a married couple residing in Tucson, Arizona, contracted Respondent on or about May 19th, 2005, in response to an emergency situation with the Complainants’ evaporative cooler. Water was gushing from the unit or the PVC pipe leading from it, and running down the side of their home. 3. Respondent repaired the unit and invoiced Complainants for the work. 4. Complainants were dissatisfied with the work. In particular, the Complainants were unhappy with how Respondent had changed the course of the PVC pipe running from the cooler. The old pipe ran down the side of the house where it was not easily seen from the street. The new pipe was laid down the front of the roof, where it could be easily seen. Second, the Complainants complain about a hole in the roof they claim was drilled by Respondent, and a series of small wood blocks laid on the roof and on which the pipe rests. Complainants contend that these blocks were nailed onto the roof by Respondent. Third, Complainants complain about the way the pipe was run through the hole in the roof and down the side of the home using holes drilled into the adobe brick to attach the pipe. Lastly, Complainants complain that the cooler still leaked after Respondent had worked on it. 5. Complainants took their complaints to Respondent. Respondent contended then and contends now that its work was satisfactory in all respects. Complainants disagreed and hired another contractor, Arizona Maintenance Company, to make changes. According to Complainants anonymous hearsay testimony this other contractor was critical of its competitor’s work on the Complainants’ home. 6. Complainants filed the instant Complaint in the Registrar of Contractors on June 11th, 2005. They stated in the Complaint that they are seeking to have their “roof and bricks repaired or replaced in a professional way.” 7. Citation and Complaint issued from the Registrar citing Respondent with possible violations of A.R.S. 32-1154.A.2, 7, and 3 (namely A.A.C. R4-9-108, Workmanship Standards). 8. Respondent field a Written Answer to the Citation and Complaint. Complainant’s Qualifying Party, and the individual who performed the work for Respondent, Mr. Felix Contreras, contended in the Answer and at the hearing that he explained every detail of the work to Ms. Brodesky beforehand (Mr. Brodesky was in Europe at the time all the work was performed, and Ms. Brodesky was not home while the work being performed.) and she agreed to it. On May 19th, 2005, Respondent readjusted the float. Ms. Brodesky agreed to have the additional work done. According to Mr. Contreras in his Answer and in his testimony at the hearing, he explained to Ms. Brodesky that part of her problem was that the existing PVC piping was running uphill, which meant the water in it was unable to travel uphill. According to Mr. Contreras, he explained that he would re-route new pipe so the water in it could easily travel downhill, and she agreed. 9. Respondent did drill a small, approximately 1” diameter hole, not in the roof, but in the attached wooden eave, so the PVC pipe could drop through it on its exit route. The holes in the adobe were made to attach the pipe to the wall by screws. 10. After the work, according to Mr. Contreras, Ms. Brodesky phoned him and said she was happy with the work. 11. When Mr. Brodesky returned he went on the roof and, as found above, was dissatisfied with the work. He replaced the float and/or performed other changes to Respondent’s work himself, and, without giving Respondent a chance to perform any additional work that might have satisfied Complainants, Complainants had Arizona Maintenance Company perform other work to the cooler system. 12. Mr. Contreras also stated in his Written Answer that he spoke with “Jon” of Arizona Maintenance Company, and his hearsay is that this “Jon” told him the work performed by Respondent did not look bad. 13. Mr. Contreras and his employee who assisted in performing the subject work on Complainants’ home, Mr. Marlin Hardin, both testified that the wood blocks were not nailed to the roof, but only attached with tar or silicone. Photographs admitted to the record do show the blocks, but do not enlighten about how they are attached. Mr. Hardin testified that all work was up to code. 14. Considering all the evidence, there is not a greater weight of it to show the Respondent’s work on the roof was not up to industry or agency standards, or local building codes. There is no written contract stating how the work would be performed or how the PVC pipe would be laid. Complainants state that they do not like the appearance of the pipe, but Respondent states that Ms. Brodesky approved it beforehand. 15. Complainant Mr. Brodesky made changes to the Respondent’s work, and Complainants had another contractor change the Respondent’s work without giving Respondent any reasonable chance to satisfy them.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S 32-1156 and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, and 3. 3. There is no evidence that Respondent’s work deviated from any plans or specifications or codes, thus there is no violation of A.R.S. 32-1154.A.2. 4. There is insufficient evidence to conclude that Respondent’s work was not up to agency, or industry standards, or otherwise unprofessional in violation of A.A.C. R4-9-108. There is therefore, no conclusion that Respondent violated A.R.S. 32- 1154.A.3. 5. There is no evidence of any other wrongful or fraudulent act on the part of this Respondent in the facts of this case, thus no violation of A.R.S. 32-1154.A.7 occurred here.

RECOMMENDED ORDER In view of the foregoing it is hereby recommended that Citation and Complaint No. T05-1235, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service shown by the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, October 19th, 2005.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Alicia Guerra 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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