ALJDEC decisions subject to certification as final

06F-2439-ROC · Registrar of Contractors · 2007-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 20 February 2007 APPEARANCES: Complainant: Arlene Goodthunder. Respondent: Mark Gamma, Owner, Arizona Cold Air LLC; Marcos Plascencia, Service Technician, Arizona Cold Air. Others: Warren Duncan, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. In December 2005, Complainant had a 4-ton heat pump installed on the roof of her garage. The heat pump cools and heats her house thru a duct running inside a duct enclosure that runs between the garage and the house. Upon installation, the heat pump operated properly. In February 2006, DuroRoof roofers put a new roof on her house. The roofers removed the heat pump, but when it was reinstalled, the pump did not operate properly. Complainant called Respondent to check on the function of the heat pump. Complainant also detected cold air- conditioned air leaking from a hole in the ceiling of her garage just below the location on the heat pump on the roof of the garage, and suspected a leak in the system. 2. Mr. Placencia went out to Complainant’s home to check the condition of the heat pump and discovered that the roofers had not properly re-installed the heat pump. The side discharge on the pump no longer lined up with the L-shaped air duct on the garage roof that led down into the duct system below the roof of the garage. The pump was ~2” higher that its original position, which left a ~2” gap open to the outside air at the bottom of the duct. Respondent repaired the gap on 2 March 2006 by placing a piece of flat metal over the gap, and securing it in place with tar and sheet metal screws, thus making a tight seal between the pump’s side air discharge and the air duct on the roof. Complainant paid Respondent $300 for the repair. 3. After the repair, Complainant still felt air being exhausted out the hole in her garage ceiling. She complained of this and other problems regarding her heat pump and air circulation system to the ROC. Inspector Duncan did a jobsite inspection at Complainant’s home on 26 June 2006, checking 6 different items Complainant complained of, but could find nothing wrong regarding 5 of the items, and stated so in his letter to the parties of 28 June 2006. Regarding the 6th item (garage ceiling air leak), Inspector Duncan could not determine whether the leak was from the air duct connection on the garage roof, or was from air blowing back along the air duct enclosure between the garage and the house, which would imply air leakage somewhere in the house air duct system. Consequently, no Corrective Work Order was issued by the ROC. Mr. Gamma indicated that none of Complainant’s house or garage ductwork was touched by his workers; only the connection between the pump and the duct system on the garage roof. 4. Inspector Duncan completed a pre-hearing inspection of Complainant’s home on 16 February 2006, and again could find nothing wrong regarding the items originally complained of by the Complainant, yet when he checked the air leak in the garage ceiling, it seemed clear that the air was coming from the air duct enclosure between the house and garage, which would indicate that the leak was occurring from somewhere in the house or the enclosure.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A). The ROC inspector, a recognized expert in the area of repairs such as the ones at issue in this case, examined the work completed by Respondent and determined it to be sound and complete. Whatever remaining discrepancies Complainant may find with regard to her heat pump and air ducting system are not related in any way to the repairs conducted by Respondent. All other enumerated items of the complaint, presented at the instant hearing, were either corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, and that this case be remanded back to the ROC for further appropriate disposition.

Done this day, March 9, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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