ALJDEC decisions subject to certification as final

07F-G1225-ROC · Registrar of Contractors · 2008-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its general manager and corporate secretary, Lee Reardon. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. At the outset of the scheduled hearing, Complainant requested that her friend, Vladimir Orlt (“Orlt”), be allowed to present her case. Orlt was not shown to be an attorney and thus, was not allowed to represent Complainant. Although Complainant has an accent, it appeared from discussions with her that she had a very good command of the English language. Thus, she represented herself at the hearing.

2. Complainant purchased a new heater/air conditioner from Respondent and alleges specified deficiencies in the work performed and/or materials provided. These issues are discussed in the findings below.

3. The following salient facts were adduced at the hearing and are important to note:

a. On or about November 2006, Complainant began to experience some type of problem with her heater/air conditioner. According to Complainant, it was making a loud noise and keeping her up at night. b. Complainant observed that Respondent was on her street, performing work for a neighbor and thus, Complainant approached Respondent to investigate the issue with her system. c. Complainant testified that Respondent’s representative came to her home and advised her that she needed a new compressor. A new compressor was a very expensive item to replace and thus, Respondent’s representative advised Complainant that she would be better off just replacing her entire system, at a cost of approximately $8,000.00. d. Complainant claims that she was led to believe Respondent’s offer to replace her unit for $8,000.00 was a good deal, which included no payments for one year and the work could be accomplished within three (3) hours. Based on these factors, Complainant elected to hire Respondent, without seeking any competitive bids from other licensed contractors. e. On or about November 29, 2006 Respondent returned to Complainant’s home to install the new unit. Evidence of record showed that the initial installation failed to provide heat for the home. Respondent’s agents indicated that they believed the unit, itself, was defective and they would have to return on the next business day (Monday) to bring out another unit. f. Respondent returned to Complainant’s home on Monday and installed a second unit. However, the new unit also failed to provide adequate heating for the home. According to Complainant, Respondent worked on the issue for the better part of the day. At this point, Complainant was very frustrated and tried to cancel her contract with Respondent, but Respondent’s agent said she could not cancel the contract. g. Complainant indicated that at the end of the work day on Monday, Respondent’s agents advised her that the second unit was also a defective unit and would also have to be replaced. h. According to Complainant, Respondent returned with a third (3rd) unit and although they advised that this unit was in proper working condition, she still felt that the new unit was not providing warm enough air into the home. i. Eventually, Dwight House (“House”) from American Standard, the manufacturer of the new heater/air conditioner came to Complainant’s home to assist Respondent with resolving the issues with the new system. House found that the existing ductwork for the return air side of the system was too small for the new unit, thereby constricting the air flow, which caused the system to fail to operate in the appropriate manner. j. Following House’s advice, Respondent expanded the return air vent size and the unit worked fine. House appeared at the instant hearing and testified that he returned to Complainant’s home on January 22, 2007 and the unit was working properly. Complainant confirms that the unit has worked fine since the final repairs were made to the system by Respondent. k. Complainant apparently filed the instant Complaint with the Registrar of Contractors, due to the aggravation and stress she suffered because the project took so much longer than the promised three (3) hours and how many return visits it actually took before Respondent resolved the problem. She also contends that not having any adequate heat in her home for an extended period of time caused her to have a cold. l. Subsequent to entering into the contract with Respondent, Complainant saw an advertisement in the local paper, which appeared to show a unit like hers for almost ½ of what she paid Respondent. Thus, she feels that Respondent overcharged her for her new unit. She seeks a refund of several thousand dollars, so that her contract would be closer in price to what she believes other contractors would have charged her. m. House testified that he has seen units, like the one he sold to Respondent, selling in the retail market for anywhere from $6,000.00 to $8,500.00. He also testified that the advertisement that Complainant was relying on, was not for the same unit that Respondent sold to her. n. Complainant attempted to raise new issues, not set forth in the original filed Complaint, regarding Respondent’s workmanship on the project, along with an allegation that said workmanship caused a roof leak. These issues were never the subject of a proper amendment to the filed Complaint and Respondent has not had an opportunity to review these issues and thereby prepare its defense in this regard. Moreover, there was no jobsite inspection by the assigned inspector for the Registrar of Contractors and there was no charge in the filed Citation of an alleged violation of A.R.S. §32-1154A (3); namely Rule R4-9-108. o. A review of the Registrar’s file in this matter shows that the assigned inspector made a note on August 2, 2007 in regard to Respondent’s request for a jobsite inspection. Said note indicates that the reason there was no jobsite inspection was because the homeowner had advised that she was only seeking a refund of her money. p. All new issues, which were not set forth in the filed Complaint, were disallowed from consideration at the instant hearing, on basic due process grounds. Respondent has scheduled to be at Complainant’s home on February 6, 2008 (two days after the date of the instant hearing) to investigate the new issues. Complainant was advised that if these issues cannot be resolved, she may file a new Complaint with the Registrar of Contractors, regarding said issues

4. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship 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. Although there was evidence that the initial installation accomplished by Respondent, failed to provide a new unit that would operate properly, the instant record showed that Respondent was diligent in working at a resolution of the problem and ultimately corrected same. There was no showing that Respondent was dilatory in its response to the issue. Thus, under all of the facts and circumstances presented herein, Respondent was not shown to have violated the spirit and intent of the State’s Contracting laws based on the initial installation of the new heater/air conditioner.

5. Regarding Complainant’s complaint on the price she paid for her new unit, we live in a system of capitalism. Contractors are free to charge whatever they wish for their equipment and services and the public is free to shop these prices around town. It was Complainant who approached Respondent about doing work on her home, not Respondent. Complainant refused to obtain competitive bids before the contract was entered into. Despite the fact that Complainant may have found cheaper prices after Respondent’s installation was completed, that fact does not serve to establish any type of violation of the State’s Contracting laws by Respondent.

CONCLUSIONS OF LAW

1. Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence 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 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (no. G07-1225), together with the Complaint upon which it is based, be dismissed. 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, February 5, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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