ALJDEC decisions subject to certification as final

06F-2440-ROC · Registrar of Contractors · 2007-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2007. APPEARANCES: Complainant Arlene Goodthunder appeared on her own behalf; Durafoam Roofing was represented by qualifying party Steve Forstie. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented is whether Durafoam Roofing, Inc. (License No. 103699) or Durafoam Roofing LLC (License No. 223889) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Durafoam Roofing, Inc. holds Class C-42 License No. 103699 and Durafoam Roofing LLC holds Class C-42 License No. 223889 issued by the Registrar of Contractors (“ROC”). Durafoam Roofing, Inc. and Durafoam Roofing LLC are referred to collectively as the Respondent. Arlene Goodthunder (“Complainant”) owns a home at 7759 N. 19th Drive, Phoenix, Arizona.

Complainant entered a contract with Respondent in which Respondent agreed to replace the roof on Complainant’s garage. That project required that an air conditioner (heat pump) be removed and reinstalled. The air conditioner had been installed on December 3, 2005 by Arizona Cold Air. On February 20, 2006 Durafoam installed the new roof. After the new roof was installed Complainant noticed odors in her home. She contacted Arizona Cold Air, which came out and inspected the air conditioner. A representative from Arizona Cold Air told her that the air conditioner had not been properly reinstalled and there was a gap that required sealing, which Ms. Goodthunder had repaired. On May 31, 2006 Complainant filed with ROC Complaint No. 06-2440 against Respondent. On or about that date, Complainant also filed with ROC a Complaint against Arizona Cold Air. With her Complaint against Respondent, Complainant included a 4 page letter describing her concerns, which in essence were that she incurred expenses to repair the air conditioner and the air conditioner still does not function properly. ROC assigned Inspector Warren Duncan to investigate. In a letter dated June 28, 2006, Inspector Williams informed Complainant and Respondent that he had investigated three issues and found that there was insufficient evidence on which to issue a citation against the Respondent. Complainant requested a hearing. The record does not reflect that any new evidence was provided to ROC, but on November 2, 2006 ROC issued Citation and Complaint No. 06-2440/06-2440W alleging that Respondent may have violated A.R.S. §§ 32-1154(A)(3) (R4- 9108) and (A)(7). ROC issued a Notice of Hearing on April 9, 2007 setting the matter for 1:30 p.m. May 9, 2007, at which time the hearing was convened. Ms. Goodthunder appeared and testified. Inspector Duncan also testified. The administrative record was accepted into evidence. Steve Forstie and Eric Koistinen appeared for Respondent, but presented no testimony. Mr. Mark Gamma of Arizona Cold Air was also present as a witness for Respondent but neither party called him to testify.

Inspector Duncan testified that he inspected Complainant’s home on June 28, 2006. As set forth in his letter of that date, he investigated three issues and found no violations. Inspector Duncan found that because Complainant had had the air conditioner reset after Respondent completed its work but before the inspection, there was no basis to find that Respondent had committed a violation with respect to that air conditioner’s condition. Inspector Duncan was unable to find an alleged violation with respect to an air leak in the garage because he could not determine from which direction the air was coming (i.e., from the roof, from the house or from a trunk line). Inspector Duncan returned to Complainant’s house February 16, 2007 to conduct a pre-hearing inspection on the Complaint against Arizona Cold Air. At that time he determined that the air was going from the house and was therefore not related to Respondent’s work on the roof. Inspector Duncan also investigated Complainant’s claim that there was water ponding on the roof. Inspector Duncan found no violation because the ponding was within the workmanships standards. Under the appropriate standard, ponding may not be over more than 1/3 the roof span or be deeper than 1/2 inch for more than 48 hours. Ms. Goodthunder testified that after the roof was replaced she had fumes or odors in her house and she contacted ROC. She was told that she should have the air conditioner fixed and so she had a gap sealed by Arizona Cold Air. According to Ms. Goodthunder the air conditioner is not as efficient as it was, and she had spent money having contractors provide her with estimates for repair. Ms. Goodthunder’s basis for concluding that the air conditioner is not running efficiently is that at times it blows warm air. The preponderance of evidence does not show that Respondent has violated A.R.S. § 32-1154(A)(3). The preponderance of evidence does not show that Respondent has violated A.R.S. § 32-1154(A)(7).

CONCLUSIONS OF LAW The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. Complainant bears the burden of proof, and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2- 19-119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). Complainant has not met the burden of proof to show that Respondent violated of A.R.S. §§ 32-1154(A)(3) or (A)(7). Because Complainant has not met the burden of proof to show that Respondent violated A.R.S. § 32- 1154(A) this matter should be dismissed. RECOMMENDED ORDER IT IS RECOMMENDED that no discipline be imposed on Respondent’s Class C-42 Licenses (Nos. 103699 and 223899) and that Citation No. 06-2440/06- 2440W and the Complaint upon which it is based should be dismissed. 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, May 18, 2007

______________________________________ Thomas Shedden Administrative Law Judge

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

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

By ___________________________ -----------------------

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