ALJDEC decisions subject to certification as final

08F-G0199-ROC · Registrar of Contractors · 2008-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2008 APPEARANCES: The Complainant represented herself. Bill Palmer, General Manager, appeared on behalf of the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. Certain facts of the case are not disputed. 2. In early June, 2007, the Complainant’s air conditioning[1] ceased operating at her home in Peoria, Arizona. 3. The Respondent quoted the Complainant a price of $5,776.00 for a three and a half ton replacement “gas pack”. 4. The Complainant testified she spoke with one of the Respondent’s installers (Angel) who stated that the return intake might need to be enlarged. The Complainant told Angel to do what was necessary. 5. The Respondent’s witness testified that its technician, Dwight Jackson (Jackson) checked duct and air return capacity for the new and larger unit. According to a March 19, 2008 letter to the Registrar and Complainant from the Respondent’s representative and witness (general manager Bill Palmer), Jackson expressed that the return could be too small for the larger unit, but to install the unit nonetheless and test the airflow to see if it required a second return. The Complainant does not recall this or any other conversation with Jackson. 6. The Respondent installed the new unit in June of 2007 but failed to obtain a permit from the City of Peoria[2]. 7. The Complainant testified the unit was not working the day after installation and the Respondent corrected the condition. After the correction, the unit was causing the wall to shake, and after further investigation the Respondent found collapsed ductwork in the attic. 8. According to the Respondent, after the installation of the new system and discovery of the collapsed ductwork, the agreement with the Complainant was to replace the collapsed return duct for $850.00 and install a second return for $800.00, for a total cost of $1,650.00. However, the Respondent charged the Complainant $843.00 for this work. Essentially the Respondent contends the Complainant is only being charged for the repair of the collapsed ductwork[3] and received the second return duct for no cost. 9. The Complainant contends the $843.00 constituted an additional charge over the contract price. She testified she told the Respondent’s employees to “do what you have to do” when informed that a larger return duct might be required, but that this additional ductwork should have been part of the original contract price. 10. The Complainant filed her Complaint with the Registrar of Contractors (ROC) on August 6, 2007. 11. On September 10, 2007, ROC Inspector Jim Hennessey (Hennessey) issued a Corrective Work Order (CWO) after an inspection. The CWO required the Respondent to obtain the proper permit and to resolve remaining issues with the homeowner. 12. The Respondent obtained the required permit on or about March 25, 2008 and the unit was inspected July 15, 2008. Conclusion of Law The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A) (1) abandonment ; (A)(2) failure to follow plans, specifications, or building codes; (A)(3) / A.A.C. R 4-9-108 workmanship standards; (A)(7) a wrongful act with substantial injury; (A)(9) failure to complete for the price stated;(A)(13)/A.R.S. 32-1124 (B) no “ROC” acronym before the license number; 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. A violation of A.R.S. §32-1154(A)(2), (lack of permit) was proven but it has been rectified. 5. The only remaining issue is whether the Respondent improperly charged the Complainant $843.00. If so, the applicable statutory provisions are (A)(7) and (A)(9). This eliminates consideration of violations of (A)(1) since the job was completed, (A)(3)/A.A.C. R4-9-108 because the unit functions properly[4], (A)(23) because the permit has been obtained, and (A)(13)/A.R.S. §32-1124(B) because no evidence was presented on the issue. 6. The evidence suggests there was a certain amount of miscommunication between the parties. However, it is concluded the Respondent should have known of the need for the second return and more clearly informed the Complainant of this prior to the installation of the new and larger air conditioning system. To this extent, and absent the additional facts of the case, the Complainant would have a legitimate claim had there been an additional charge by the Respondent for the second return. 7. However, based on the evidence, it cannot be concluded the Respondent knew or should have known of the collapsed original return duct for which the Respondent charged the additional $843.00. The complained of charge by the Respondent for repair of the collapsed ductwork is therefore considered justified. 8. Given these facts and conclusions, the Complainant has not met the burden of proof and it cannot be concluded the Complainant was improperly charged so as to constitute a violation of either (A)(7) or (A)(9). Recommended Order It is recommended that the case be closed[5].

Done this day, August 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] The Complainant had a three ton “gas pack” for heating and cooling [2] The Respondent did not dispute that a permit was required. [3] The Administrative Law Judge questioned the fact that the collapsed ductwork was not discovered until after the new and larger system was installed. Checking air flow capacity would seem prudent in light of the Respondent’s pre installation opinion that a second return might be required for the larger unit. No satisfactory answer was given to the question. [4] There is inadequate evidence that the Respondent was responsible for the collapsed return ductwork. [5] The Order in this case is to take effect 40 (forty) days from the date of the Order or if certified by the Director of the Office of Administrative Hearings, 40 (forty) days from the date of certification.

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