ALJDEC decisions subject to certification as final

08F-0424-ROC · Registrar of Contractors · 2009-04-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2009.

APPEARANCES: >The Complainants appeared through Pamela Hofmann. >The Respondent appeared through Lesette Reardon, its corporate Secretary and an authorized employee.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Pursuant to a written proposal and contract, Respondent agreed to and did furnish and install a new 13-seer, 4-ton heat pump to be mounted on Complainants’ roof with a roof curb and to utilize the existing ductwork in Complainant’s 30-year old residence. The agreed cost price of $4,680.00 was shown to have been fully paid by Complainants to Respondent.

2. The installation was completed in mid-January, 2007. Following a communicated report the next day as to poor heated air flow, a service call by Respondent resulted in an adjustment to the speed of the motor.

3. The evidence was conflicting with respect to whether or not any further service calls by Respondent were made from mid-January through mid- July, 2007, but no documentary evidence was introduced to establish either the dates, reasons or results of the interim jobsite visits, if any.

4. When the equipment was subsequently being utilized in the cooling mode, the experiencing of some condensate leakage into the home prompted immediate notice from Complainants and a service call by Respondent on July 17, 2007. Such jobsite visit by a technician resulted in the discovery that the pan within the new unit was cracked and therefore defective. A replacement pan was obtained and installed by Respondent the next day. Although a service call charge of $44.00 was reflected on the invoice for the first visit, no showing was made that such charge was not waived by Respondent or was otherwise actually paid by Complainants.

5. Complainants continued to communicate complaints about insufficient or inadequate air flow into certain portions of the home which was also served by another 2-ton unit for one portion of the dwelling. Prior to the purchase of the new 4-ton unit, Respondent was shown to have serviced both household units under an annual contract with Complainants. Complainants maintained that no problems were ever experienced with the air flow from the older unit that was replaced by Respondent and that such previous air flow had been noticeably stronger than that the flow from the replacement unit.

6. Respondent was shown to have returned several more times to the jobsite in an attempt to rectify any problems reported by Complainants. Despite an assertion by Complainants that Respondent had communicated its intention not to perform any

further work or to make additional service calls, Complainants admitted that Respondent did promptly send out technicians for the purpose of checking and improving any repeated reporting of air flow problems.

7. The last jobsite appearance of Respondent for the performance of remedial work was on August 14, 2007, several days before Complainants filed their earlier dated formal complaint with the Registrar. Respondent’s technician found no air flow problems as a result of that last visit.

8. Prior to the assigned Inspector’s initial jobsite visit, Complainants concluded arrangements with a successor contractor less than a week after filing their complaint. The agreed work consisted of extensive ductwork revisions, including the providing and installing of new, increased size materials. It is noted that the parties’ contract had specified the use of Complainants’ existing ductwork. The successor contractor also included the providing of a new stand for the roof-mounted heat pump unit, despite the fact that the contract with Respondent had expressly provided for the unit to rest on a roof curb and not a stand.

9. The need for very prompt and effective remedial action, especially when dealing with cooling functions of the installed equipment in the summer season, is not disputed, and Complainants are not found to have waived any of their otherwise applicable rights by resorting to other contractors to examine and improve the results of the unit’s overall performance. Despite a showing that Respondent had consistently responded within approximately 24 hours to communicated requests for further measures to increase a reported air flow problem, Complainants continued to remain unhappy with the results of Respondent’s efforts which had included several separate opportunities.

10. Complainants seek to recover all or most of the $1,775.00 paid to the successor contractor in addition to other additional incurred expenses purportedly attributable to Respondent’s prior installation and subsequent corrective attempts.

11. Other than notations on several invoices and/or estimates from competitor mechanical specialty contractors and verbal reports of what certain technicians or employees had communicated to Complainants, no expert or other knowledgeable testimony was presented at the hearing that tended to indicate that any extent of air flow restriction was excessive or that any air leakage into the attic space was interfering with the ability of the new unit installed by Respondent to heat and/or cool the home within prevailing industry standards and tolerances.

12. Bids or proposals from several competitor contractors, none of whom was present to testify at the hearing, purporting to identify certain described deficiencies in the Respondent’s installation may not properly be equated with sufficient valid proof of wrongdoing on the part of Respondent for the purposes subjecting Respondent’s contracting license to disciplinary action. The same is true of expenses incurred for the repair of damages to the existing roofing that had been installed many years prior to the dealings between these parties, such damages alleged to have been proximately attributable to the work of Respondent in installing the new 4- ton unit. The hearsay quality of the introduced testimonial and documentary evidence, without any ability to examine the authors or the persons reporting such information as to their experience, motivation, bias and overall credibility must necessarily impact adversely upon the probative value of such reports and comments.

13. The sole item of probable causal responsibility on the part of Respondent would relate to claimed water damage to the household carpeting inside of the home that had occurred during the July, 2007 condensate leakage from the subsequently replaced defective cracked pan within the newly installed unit. However, although

mentioned during the testimony, no sufficient evidentiary demonstration was presented at the hearing so as to enable any determination of the necessity for and the extent and cost of carpet cleaning.

14. In any event, the Registrar of Contractors is not the proper forum in which to seek an adjudication and an award of monetary damages based upon claims that a contractor has breached its contractual obligations. Any such damages should properly be sought and obtained, if at all, by pursuing available remedies before a civil court of competent jurisdiction.

15. Even a credible showing of a subjective discomfort level experienced by Complainants and other household members does not, of itself, establish any contracting law violations. Complainants’ testimony established a strong personal dissatisfaction with the extent and degree of interior air flow generated by the installed cooling equipment. However, Respondent’s experienced employee testified that the unit was operating well within expected norms after a return jobsite service call during which some further work on the duct system was performed. The assigned Inspector for the Registrar was unable to evaluate the performance of the installed unit and duct system which had already been worked on by a successor contractor. Such Inspector decided not to issue any directive or corrective work order requiring any remedial action on the part of Respondent.

16. It must be held, under all the evidence and testimony of record, that, irrespective of a high degree of personal dissatisfaction on the part of Complainants, they did not sustain their burden of proof, applicable in these administrative disciplinary proceedings, by sufficiently establishing that the condition, performance and operational capabilities of the newly installed heat pump unit by Respondent was deficient or unacceptable according to prevailing industry standards and tolerances.

17. To impose an obligation upon a contractor to insure that the final resulting performance of its installed equipment will meet a property owner’s own personal temperature comfort levels would be an impractical and unduly onerous burden in view of the extremely high degree of subjectivity involved. The workmanship provisions of the State’s contracting laws were not intended to subject the license of any contractor to disciplinary action for failure to satisfy the individual comfort levels and tolerances of all potential and actual customers.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. 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). 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 (6th ed. 1990)

2. While the overall resulting performance and operational capabilities of most all construction features will generally have an impact in the determination of what constitutes proper, acceptable workmanship, the Complainants in this administrative disciplinary case failed to sustain the requisite burden of proving by a preponderance of reliable, substantial and probative evidence that the overall contractual obligations of Respondent were not satisfied with respect to the 13-seer, 4- ton new unit installed by Respondent for servicing a portion of the dwelling or that any part of the installation was

substandard and deficient to an extent that would adversely reflect upon Respondent’s workmanship or upon its discharge of applicable contractual responsibilities.

3. The totality of the evidence of record did not adequately support any findings of violations by Respondent of the charged subsections of A.R.S.§32-1154(A).

RECOMMENDED ORDER

In view of the foregoing, it is hereby recommended that the entire Citation and Complaint in Case Number 08-0424 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 will be forty (40) days from the date of that certification.

Dated: April 10, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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