ALJDEC decisions subject to certification as final

07F-Y0232-ROC · Registrar of Contractors · 2008-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2008, at 9:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-39 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent conducted an examination of the air conditioning system on a new residence that the Complainant was in process of purchasing. 3. There was no dispute that the Respondent issued a written report which provides, in pertinent part, as follows: “This is to certify that the heating & cooling & evap. Cooler are operational at this residence. This does not constitute any warranties on future problems.” 4. The Complainant then purchased the residence and at the start of the summer season the Complainant found that the air conditioning system was not operational. 5. The Complainant then had the air conditioning system inspected by other contractors all of which found the air conditioning system to be non- operational and in need of replacement. 6. The Complainant informed the Respondent of problem and requested that he either repair or replace the system. 7. When the Respondent declined to repair or replace the system the Complainant retained an alternative contractor to replace the air conditioning system at a cost of $3,400.00 and filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 8. In view of the fact, that a new air conditioning system had been installed no on-site inspection was performed and no Corrective Work Order was issued. 9. Credible testimony and evidence, presented at hearing, established the Respondent failed to perform his inspection of the original air conditioning system in a professional and workmanlike manner. Consequently he certified the system as being operational despite the fact that the air conditioning system was not operational and could not be repaired. 10. The Respondent’s actions, in failing to perform his inspection of the Complainant’s air conditioning system in a professional and workmanlike manner and then leading the Complainant into believing that the air conditioning system in the Complainant’s new residence was fully operational, are found to constitute a wrongful act. 11. Credible testimony and evidence, presented at hearing, established the original air conditioning system was not repairable and the Complainant’s actions in causing the inoperable air conditioning system to be replaced at the start of the warm weather season, were reasonable and justified under the circumstances. 12. The Registrar of Contractors’ authority in matters such as presented herein includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against the licensed contractor. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all of the credible evidence, a reasonable condition in this case would consist of payment by the Respondent to the Complainant of $1,700.00, as partial restitution for the cost of the Complainant’s replacement air conditioning system. Imposing such a condition is more preferable than merely imposing a disciplinary action against the Respondent’s license without providing a condition to reduce or eliminate the disciplinary action. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act). 2. The Registrar may order a “restitutionary remedy… as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing …laws.” Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 803 P.2d 430 (App. 1990). 3. A.R.S. Section 32-1156.01 provides, in pertinent part, that “after a hearing…an administrative laws judge may recommend that a licensee provide restitution…” RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class K-39 License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly, as restitution, paid the Complainant the sum of $1,700.00. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter be closed. 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 the certification. Done this day, April 29, 2008.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 www.azoah.com