ALJDEC decisions subject to certification as final

07F-A0187-ROC · Registrar of Contractors · 2007-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 16 April 2007 APPEARANCES: Complainant: Lynn & Rebecca Lorenz, Complainants (Telephonic from Estes Park, Colorado). Respondent: Larry Forsythe, Owner of Forsythe Mechnical Services (Televideo from Prescott, Arizona) 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), specifically subsections 1 and 7. 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. Complainant’s own a residential rental property that they used to live in themselves at 1617 Campbell Avenue in Prescott, Arizona (the “House”). Complainant’s now live in Estes Park, Colorado. Although certain documentation in the record was contradictory regarding the precise dates certain events occurred, after some deliberation all parties concluded at hearing that the work conducted by Respondent occurred in July 2006. 2. In the first week of July 2006, Complainant called Respondent to repair a digital thermostat at the House. Respondent met with Mrs. Lorenz at the House, repaired the thermostat and was paid. On 13 July 2006, Respondent was recalled to the House to fix the air conditioner. Upon arrival at the House, Respondent diagnosed the problem (the compressor in the condenser unit was shorted out to ground) and called the manufacturer of the unit (Carrier) to determine if the unit was reparable. He was told it was over 30 years old, 3.5 ton capacity, parts were no longer available, and that it was probably not worth trying to repair. Respondent called a local distributor to price a replacement condenser unit. Respondent then called Mrs. Lorenz (who was now back in Estes Park) to inform her of the situation, and that he could replace the condenser unit for $1850.00. Mrs. Lorenz agreed to replacing the unit, and gave Respondent her credit card number to pay the $1850.00 price of the unit and its installation. Respondent installed the unit the next day. 3. Soon after the installation of the new unit, the tenant of the House called both Complainant and Respondent complaining that the new air conditioner unit did not work properly. Respondent immediately investigated and discovered that the new condenser unit and the cooling/evaporator coil inside the House were incompatible, due to differing cooling capacities and age. Respondent acknowledged his error in not suggesting replacement of the cooling coil at the same time he replaced the condenser to Mrs. Lorenz in a phone call to her, and offered to replace the cooling coil for the cost of the coil ($300.00) with free installation and could have it completed in 2 days. Mrs. Lorenz stated that the tenant did not want Respondent back in the house again, and that she was going to get another contractor to complete the job. Respondent tried contacting Complainants several more times, but Complainants refused to discuss the matter. Mrs. Lorenz denied ever authorizing Respondent to install the condenser unit over the phone with Respondent. There is no written contract between the parties regarding installation of the unit. 4. Respondent testified that it is common practice in Prescott to verbally arrange for and authorize installation and repair of residential heating, cooling and plumbing equipment. This is due to the large number of vacation and rental homes in the area that are either not occupied by the owners throughout the year, or are owned by absentee landlords, like the Complainants. 5. Examination of the ROC website reveals that in the 17 years Respondent has been licensed as a C-39R contractor, he has never had a single complaint filed against him.

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. It strains the credulity of this tribunal to believe that a contractor with 17 years of unblemished service would suddenly install a condenser unit on a home without believing he had some sort of authority from the homeowner to do so. Such a contractor has little motive to do such a thing, for he faces loss of the value of the work he accomplishes and ROC disciplinary action if it is proven that he did. On the other hand, it is easy to believe that a homeowner who verbally contracts with a contractor for certain work, then suddenly decides to change contractors in mid-project and doesn’t wish to pay for the work already accomplished by the original contractor, has a strong motive to deny the existence of the verbal contract between the parties in order to avoid payment for the work already accomplished by the original contractor. In addition, it is well settled that contractors working in Respondent’s field of endeavor often undertake work on the basis of a verbal authorization. Accordingly, this tribunal finds that there was a verbal contract between the Respondent and Complainant for the purchase and installation of the condenser unit at the House for $1850.00, that Complainant accepted delivery of the unit, and that Complainant’s first rejection of any further work to be conducted by Respondent was when Complainant was informed that the House tenant did not want the Respondent to return to the House and that there was in incompatibility between the new condenser unit and the old cooling coil. 3. The evidence adduced at hearing showed that there were certain deficiencies in the work undertaken by Respondent. However, notwithstanding such deficiencies, it is well established that construction and installation work, such as that at issue in this case, is not an exact or perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship, mistakes or miscalculations made prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. See ARS §32-1154(A)(23). 4. Complainant elected to file its complaint with the Registrar of Contractors and, pursuant to said election, was required to allow the Registrar’s normal process to be followed; specifically, to allow the ROC to investigate the complaint and give the Respondent an opportunity to complete any remedial action that the ROC inspector deemed appropriate. See ARS §§32-1104(A)(4) and 32-1154(B). The instant record failed to demonstrate any significant health or safety reasons why Complainant could not have allowed the construction and installation deficiencies to have been inspected by the ROC and to be corrected by Respondent. In addition, access to the property on which corrective work is to be conducted is integral to the entire ROC remedial and enforcement process. A contractor has the right, in the face of an ROC Complaint and Citation, to an opportunity to conduct remedial work to correct deficiencies in previous work. Denial of access to the property denies the contractor of that opportunity, and is tantamount to denial of the right to make remedial corrections. The salient facts and circumstances presented in the instant case militate against any finding of violations by Respondent of the spirit and intent of ROC-related statutes and regulations. 5. 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).

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, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, April 27, 2007

______________________________________ Maurice McWhirter 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