ALJDEC decisions subject to certification as final

08F-2518-ROC · Registrar of Contractors · 2008-12-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2008 APPEARANCES: Complainant: Sal Cassaro appeared, pro per. Respondent: James Probst, corporate officer, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated November 10, 2008. 2. Complainant Sal Cassaro (“Complainant”) is an occupant of a home located at 3202 North 50th Drive, Phoenix, Arizona (“premises/project”). 3. Respondent Quality Home Maintenance, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 206339, Class K-39 (Dual Air Conditioning and Refrigeration) issued by the Registrar of Contractors (“ROC/Registrar”) April 15, 2005. David Richard Probst is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended May 9 – 24, 2007 and July 22 through August 3, 2007 for lack of bond. 4. Complainant filed a complaint with the ROC on February 19, 2008 to which was attached a letter dated February 10, 2008 and exhibits. Therein, Complainant asserted various problems with services performed by Respondent on Complainant’s HVAC unit. Complainant also requested a refund of the $729.00 paid Respondent for such services. 5. On April 8, 2008, Complainant filed a correspondence with the Registrar wherein he amended his complaint and asserted that he had, in fact, paid Respondent $759.40 for services rendered. 6. Complainant filed a request for hearing on May 19, 2008. 7. On October 10, 2008, the Registrar issued a CITATION AND COMPLAINT in Case No. 08-2518 charging Respondent with possible violations of A.R.S. §32-1154A 7, 15, 16 and 3 (namely, R4-9-108, the workmanship rule). 8. Respondent filed an answer on October 15, 2008 wherein it asserted, inter alia, that Complainant’s HVAC system was approximately twenty (20) years old at the time of service, Respondent recommended replacing the unit at the time of its initial call to the premises; and, the second visit was for a “completely unrelated item” at which time it discounted to the call as a courtesy to Complainant so that he only paid for the part. 9. At the hearing, Complainant testified but submitted no exhibits. 10. Jim Probst (“Probst”), corporate officer, testified on behalf of Respondent and submitted Exhibits A through H which were marked, admitted and considered. Matt Miller (“Miller”) and Heath Bauldry (“Bauldry”), service technicians, also testified on behalf of Respondent. 10. On November 7, 2007, Miller, on behalf of Respondent, made a service call to the premises at Complainant’s request to address his HVAC system. Upon inspection, Miller recommended that Complainant replace the entire system or at least several parts the latter at a cost of $648.00. At the time, Complainant declined both recommendations and paid Respondent a $29.95 service fee. (Exhibit A) 11. On November 14, 2007, Miller made a second service call to the residence on Complainant’s request. At that time, Miller performed additional service work and installed various parts on the HVAC system. Miller discounted Respondent’s $648.00 charges to $600.00 for such work. (Exhibit B) 12. On November 17, 2007, Miller again made a service call to the premises on a no heating report. Miller determined that the system was running appropriately and charged Complainant nothing for the call. (Exhibit C) 13. Miller was dispatched to the premises again on December 4, 2007 for a no heat report which resulted in his reiterating his recommendation that the HVAC unit be replaced or, alternatively, the control board. Complainant decided to order the new control board but was not charged for the call. (Exhibit D) 14. Miller returned to the premises December 5, 2007 for a continued service call from December 4, 2007. At that time he installed an indoor blower control board. Respondent’s $629.85 charge ($600.00 for parts, $29.95 service fee) was discounted to $129.95 as a courtesy to Complainant because of prior work performed. (Exhibit E) The unit was functioning at the time Miller departed the premises. 15. On January 18, 2008, another technician, “DJ”, conducted a diagnostic service call at the premises at which time no problems were found. (Exhibit H) Complainant was not charged for this call. 16. Bauldry testified that on January 23, 2008, Respondent dispatched another tech, “Vinny”, to the premises for a service call. At that time, Vinny found a bad bearing on inducer fan motor and a cracked heat exchanger. Vinny recommended that Complainant turn off gas and get a CO2 detector. (Exhibit F) 17. Contemporaneously on January 23, 2008, Vinny presented a proposal and contract (“proposal”) to Complainant for the replacement of the HVAC unit. (Exhibit G) The proposal contained estimated costs for three (3) different York three ton replacement HVAC units. 18. Complainant wanted to have a new HVAC system installed but did not want to pay Respondent’s prices and/or wanted a credit/discount for monies already paid. Complainant subsequently had another company install a new unit and wants Respondent to refund all the money paid to Respondent. APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 08-2518 charged Respondent with possible violations of A.R.S. §32- 1154A 7, 15, 16 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

…

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.

16. False, misleading or deceptive advertising whereby any member of the public may be misled and injured. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. It is determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A 15 and 16 as no evidence attendant to these subparagraphs was presented. 5. It is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A 7 and 3 (namely, R4-9-108, the workmanship rule).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. 08-2518 be dismissed.[1] Done this day, December 31, 2008.

_________________________ Brian E. Smith Administrative Law Judge

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

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By _________________________ ----------------------- [1] 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.

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