ALJDEC decisions subject to certification as final

07F-M2028-ROC · Registrar of Contractors · 2008-01-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 2, 2008 APPEARANCES: The Complainant represented herself. The Respondent represented himself (LLC Managing Member) ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant purchased a newly constructed home[1] in a multi unit complex in Apache Junction, in 2005. 2. The Respondent[2] had installed the heating and cooling system for the unit. The thermostat is in the kitchen. 3. During the summer months, the Complainant sets the thermostat at 77 degrees Fahrenheit (F.) She testified the kitchen, dining area, and master bedroom are adequately cooled. The living room is slightly warmer and the second bedroom is significantly warmer[3]. 4. The home was to have eight heating and cooling vents but a vent which was in the plans, is missing in the living room and another vent is in a different location than depicted in the plans. 5. The Complainant noted a cooling problem during the “walk through” and notified the builder. A Report by Inspection Specialists dated May 5, 2006, asserts the registers in the living room and front bedroom have little through put of air making it hot in the summer and cool in the winter. The condition needed to be evaluated. 6. Another report by Inspection Specialists (inspection date October 6, 2006), asserted the air conditioning was noisier than what one would expect (the air is too fast in the system), 40% of the air is delivered into the master bedroom register, there is no register specifically for the living room which is contrary to plans 7. On October 26, 2006, the Complainant was successful on the cooling issue in arbitration (noise and guest bedroom). After a home inspection and balance test, the Respondent installed four new registers (OBD) but the system still does not operate to the Complainant’s satisfaction. 8. A report by Q.C. Analytical Services dated December 29, 2006, states there is a difference between supply and return airflows of 504 CFM[4]. There were gaps between the unit and the frame it sits in. The report states the 504 CFM appears to be coming from the attic area and this part of the unit should be sealed, the thermostat may be too close to the kitchen supply outlet causing short cycling and uneven heating and cooling. 9. According to the Complainant, the air handler was still loud and the Complainant believes this was due to the system not being balanced because one vent was deleted (living room) and another was moved. 10. On April 17, 2007, the Complainant filed her Complaint with Registrar of Contractors (ROC). 11. The Omega[5] Test and Balance Systems Deficiency List, dated April 28, 2007 (Exhibit 3), asserts that the “Outside air duct is not installed, cannot balance distribution, need OBD registers installed, compressor not staging properly”. These assertions and their relationship to the Complainant’s claimed problems are not sufficiently explained and cannot be given significant weight. The Recommendations/Analysis portion of the Omega Report provided that supply grills were creating air noise which should be corrected, an air balance could not be performed because of the type of supply air diffusers and dampers, supply grills should be changed to diffusers with proper balance dampers (registers), condenser system does not operate to thermostat commands, possible bad thermostat or wiring. 12. On May 16, 2007, at 8:00 a.m. ROC Inspector Beau Cruz (Cruz) performed a jobsite inspection. The OBD registers had been installed by then. Cruz concluded that the system was a little bit loud (slightly louder in the master bedroom)[6]. He tested the unit for approximately 15 to minutes and the temperature variation throughout the home was, at most, two degrees F.[7] 13. Inspector Cruz did not require any corrective work and the Complainant requested a hearing. 14. The Complainant offered a Corrective Work Order (CWO) issued by Cruz for the air conditioning in a neighbor’s (Williams) residence in the same multi unit complex. Cruz testified the conditions in the neighbor’s home were not the same as in the Complainant’s home. With respect to the question of why Cruz required the Respondent to correct deviations from plans at the Williams residence but not at the Complainant’s, Cruz testified that Apache Junction had approved field changes after the Williams inspection but before the inspection at the Complainant’s home. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154(A)(2) material departure from plans and specifications prejudicial without consent of the owner, A(3)/A.A.C. R4-9-108, workmanship, and (A)(7) a wrongful act with substantial injury. 1. The Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence Culpepper v. State, 187 Ariz. 431 (1996 App.)[8], 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). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 2. The evidence in an administrative hearing must be “substantial, reliable, and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. Although it is acknowledged there was a departure from original plans and specifications, there is insufficient evidence of a violation of (A)(2), because there is no evidence the Complainant was the owner of the unit at the time of the field change deleting one vent and moving another. There is no evidence this field change was done without the consent of the owner (presumed to be the developer) at the pertinent time. In addition if it is argued the Complainant was entitled to have the project completed in accordance with initial plans and specifications (a tenuous argument if the prior owner agreed to the change), the prejudice to the Complainant is also problematical and will be discussed in the context of (A)(3)/A.A.C. R4-9-108 (workmanship). 5. The workmanship rule requires all work to be performed in a “workmanlike manner”. A violation must be based on a clear deviation from accepted or recognized standards. Cruz did not issue a Corrective Work Order. He testified the cooling was “a little bit loud” and that the variation in the unit was only two degrees F. 6. The problem with the various inspections by private companies and their reports is that they are hearsay and cannot be questioned with respect to the competency of the person making the assertion, the truth and accuracy of the report, or about what the assertions mean in relation to the problem complained of by the Complainant. In addition, the first two reports were done prior to the arbitration award and the installation of the four OBD registers thereby potentially rendering the assertions in those reports moot.

7. Although the evidence suggests the Complainant’s heating and cooling system may still be a “little bit loud”, and the temperature throughout the home may not be uniform, the evidence is insufficient to determine any objective standards regarding either of these areas (noise and temperature uniformity), which would cause a violation to be found. Absent such an evidentiary standard, the Administrative Law Judge cannot impose some arbitrary criterion which has no relationship to an industry or some other accepted workmanship standard. 8. It is evident the Complainant has spent time and money in preparing her case. She has made a commendable presentation. Nevertheless, absent more competent evidence from persons who prepared the reports[9] for the Complainant, and in light of the testimony of Cruz, and the fact that no CWO was issued, it cannot be concluded the Complainant has presented a preponderance of the competent evidence to sustain a violation of (A)(3). charged violations. 9. There is no independent violation of (A)(7). Recommended Order It is recommended commencing the effective date of the Order issued in this matter[10], that the Citation and Complaint, upon which it is based, be dismissed. Done this day, January 14, 2008

______________________________________ Allen Reed Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] A first floor two bedroom and two bath 956 square foot unit. [2] The General Contractor had changed the air conditioning-heating subcontractor during construction. The change also resulted in some field changes to the design of the hearing cooling system including in the Complainant’s unit. [3] The precise temperature variation was not established by the Complainant. [4] Cubic feet per minute [5] A licensed (K-39) contractor. [6] No decibel readings or other noise levels (recordings) were submitted making it difficult to gauge what might be an unacceptable noise level. [7] It is understood that the time of day and year are not going to place the same demand on the system as mid afternoon in June, July, or August. It must also be understood the temperature can vary in rooms depending on, into which room the sun is shining, during what part of the day, the insulation of the windows and walls, and a number of other factors. These issues were not raised in this case. [8] The Culpepper case applies to an administrative agency. However, since any violation established in this case may result in a sanction by the agency, the ruling in the case applies equally to the Complainant. [9] One or more of these persons could have bee n subpoenaed [10] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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