ALJDEC decisions subject to certification as final

08F-2647-ROC · Registrar of Contractors · 2009-03-05

2IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 17, 2009 APPEARANCES: The Complainant appeared in her own behalf. Mathew Kuraye, Qualifying Party and corporate officer, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. Certain facts of the case are not disputed. 2. The parties entered a contract whereby the Respondent would replace two heat pumps at the Complainant’s two story 3100 square foot home in Scottsdale, Arizona. 3. The units were installed in June 2007, at a cost of approximately $18,000.00. 4. Subsequent to the installation, the Complainant discovered that the Respondent had cut away a portion of a parapet on the roof in order to install one of the heat pumps.[1] The ends of the cut away parapet were open and exposed to the elements. The hallway of the second floor of the home began to show a leak from the roof. 5. In addition to the parapet issue, the Complainant discovered that approximately 13 roof tiles were broken. 6. The Complainant filed her Complaint with the Registrar of Contractors (ROC) on February 22, 2008. In addition to the above items, the Complaint also asserted that a supply and return duct were improperly sealed, alcoholic containers were left on the roof, and condensation lines were not re-installed. 7. ROC Inspector Mark Alyea (Alyea) performed a jobsite inspection on March 27, 2008. 8. On April 9, 2008, Alyea issued a Corrective Work Order (CWO) which required the Respondent to correct the (a) the roof tiles, (b) what remained of the parapet, (c) and appropriately seal the supply and return ductwork on the roof.[2] 9. The Respondent did not perform any corrective work because he does not believe he has any responsibility for the referenced items. 10. On February 13, 2009, Alyea performed pre-hearing inspection. No corrective work has been accomplished and the water damage from the roof leak has worsened. The Complainant has made a hole in the hallway ceiling for the water to escape and according to Alyea the damaged area extends six feet. The Complainant testified she has taken no independent corrective action because she feared it would jeopardize the presentation of her case.[3] Irrespective of the Complainant’s apprehensions regarding the presentation of her case, she has a duty to mitigate damages. Damage caused by knowingly allowing water to continue to leak into the home, cannot be attributed to the Respondent. 11. According to the Respondent, the roof tiles were already broken before he installed the heat pumps. The Respondent testified he informed the Complainant of this fact at the same time he told the Complainant he would cut down the parapet in order to install one of the roof heat pumps. According to the Respondent, the Complainant agreed to be responsible for repair of what remained of the parapet if the Respondent removed the (central portion of the) parapet. The Complainant testified she did not recall the above conversation with the Respondent. 12. The Respondent also claimed the Complainant acknowledged that the conversation referenced in paragraph 11, had occurred in the company of Inspector Alyea, who testified he had no recollection of such an acknowledgment by the Complainant. 13. The Respondent accuses both the Complainant and Alyea of lying in their testimony (perjury) as well as accusing Alyea of bias against foreigners (in this case a Croatian). The Respondent presented no evidence to support his assertions and they cannot be given any weight.[4] 14. Alyea testified the damaged tiles were in the general vicinity of the installed heat pumps and the damage appeared to be caused by people walking on them. The Complainant testified she had a 150 tiles replaced shortly before the Respondent installed the heat pump. There is no direct evidence the Respondent caused the tile damage. There is no evidence of anyone else on the roof after the 150 tiles were replaced two months prior to the installation of the heat pumps.[5] Circumstantial evidence may constitute substantial evidence. However, in this case the evidence is insufficient to establish the Respondent caused the tile breakage. 15. The photographic evidence is clear and undisputed. What remains of the parapet requires correction by way of enclosing the open area and sealing what is left of the respective ends of the parapet. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(3)/A.A.C. R 4-9-108, workmanship standards; (A)(7), a wrongful act with substantial injury; and (A)(23), failure to take appropriate corrective action. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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. 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. 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. The Respondent’s claim of no responsibility for the parapet because the Complainant was to correct what remained of it, is not accepted. The Complainant testified credibly that she was not aware of the condition of the parapet after the installation of the heat pump. She could hardly accept the duty to correct the condition if she didn’t know of it. The condition of the parapet is such that had the Complainant agreed to properly seal it, she would have done so because it is evident that it presents a leak hazard[6]. 5. Based on the most competent evidence, it is concluded the Complainant has proven the violations as alleged. The failure to seal what remained of the parapet is a violation of (A)(3)/A.A.C. R4-9-108 and the subsequent damage constitutes substantial injury, leading to a violation (A)(7).[7] The evidence also requires proper sealing of the leaking duct(s). Failure to take any action to correct these items is a violation of (A)(23). The evidence is insufficient to establish the Respondent’s responsibility for the broken roof tiles. Recommended Decision It is recommended commencing the effective date of the Order issued in this matter[8] that the Respondent’s Class K-39 license shall be suspended until the Respondent accomplishes appropriate corrective work to properly seal what remains of the parapet and the supply and return ductwork.

Done this day, March 5, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The heat pump was installed at the same location as the one it was replacing, but the new heat pump was larger and this required removal of the parapet. [2] In response to the Respondent’s allegation of bias, Alyea testified he could have included repair of the hallway ceiling, but he had failed to do so. [3] The issue is not novel. However, each failed item of construction must be considered in context. By way of example, a person cannot ignore faulty wiring which could lead to electrocution or a catastrophic fire, or a faulty gas connection which could lead to an explosion. Dangerous items such as these must be immediately addressed and cannot wait up to a year until the matter comes on for hearing. Similar reasoning, but not of the same immediate urgency, applies to items such as a leaking roof and the damage it may cause. On the other hand, little or no urgency attaches to items such as an excessive horizontal crack in a driveway or a deviation in the height of a fence. Although all items may be the result of poor workmanship and the subject of a Corrective Work Order, one size does not fit all, and the manner of resolving the problems is dependent on the nature of the problem. In some situations corrective work may be required before an ROC inspection can be accomplished. [4] It may well be that the Respondent made mention of the parapet to the Complainant. However, it is clear that if such mention was made, the Complainant did not fully comprehend the context or extent of what was being discussed. Aside from testifying she did not recall such a conversation with the respondent; the Complainant testified she had not been on the roof and she did not know anything about the parapet or its modification. [5] There are a number of other plausible explanations. The broken tiles could have been overlooked during the initial repair, other factors could have caused tiles to break after the repair, etc. [6] Notwithstanding the fact that the Complainant has done nothing because she believed it would jeopardize her case. [7] The substantial harm is found for the initial water damage caused by the leak and not for the further damage caused by the Complainant’s failure to mitigate the problem. [8] 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