ALJDEC decisions subject to certification as final

08F-G0237-ROC · Registrar of Contractors · 2008-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 3, 2008. APPEARANCES: Victor Johnson appeared personally. Freedom Air Conditioning Plumbing and Heating, Inc. was represented by its authorized employees, Robert Weatherford and Shannan Hersay. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Freedom Air Conditioning Plumbing and Heating, Inc. (“Respondent”) is the holder of License No. 203498, a Class K-37 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Victor Johnson (“Complainant”) is a home owner who visited Respondent’s booth at a home show. He made arrangements to have Respondent’s staff inspect his reverse osmosis system and possibly replace the system’s filters. 3. Respondent’s employee, Robert Weatherford, later arrived at Complainant’s residence for a scheduled service call. Since Complainant was not at home at that time, his friend, Peter Moore, let Mr. Weatherford into the residence. 4. Mr. Moore returned to the second floor of Complainant’s residence after letting Mr. Weatherford inside the residence. He remained there for the duration of the inspection. 5. Complainant’s reverse osmosis system is located in a cabinet underneath his kitchen sink. 6. Mr. Weatherford opened the doors to the cabinet and performed a visual inspection of the reverse osmosis system. He observed that the cabinet floor had buckled, indicating that there had been a prior leak in that area. He saw rust on the system’s tank. 7. Mr. Weatherford did not touch anything in the cabinet during his inspection. He did not observe any water leaking during his inspection. 8. After completing his inspection, Mr. Weatherford telephoned Complainant to report his findings. Complainant agreed to a scope of work, including replacement of the rusted tank, to be performed by Respondent. He agreed to pay the costs for the work. 9. Respondent’s policy is to require a down payment of 20% for work to be performed. Since Complainant was not at home to pay that amount, Mr. Weatherford left the residence intending that the work be performed at another time. 10. The next evening after Mr. Weatherford’s inspection, Complainant called Respondent’s office to report a water leak in the vicinity of his reverse osmosis system. Respondent’s staff tried to walk Complainant through an evaluation to determine the source of the leak. 11. The day after the reported leak, Mr. Weatherford went to Complainant’s residence. He replaced the rusted tank. He also discovered a fitting that had cracked, which he replaced. The fitting was located in the vicinity of the buckled cabinet floor. 12. Complainant filed a written Complaint against Respondent with the Registrar because he believed that Mr. Weatherford’s inspection had caused the water leak. 13. In response to the filed Complaint, the Registrar’s assigned inspector, Jim Hennessy, performed a jobsite inspection at Complainant’s residence to view the equipment in the cabinet. 14. Inspector Hennessy viewed the old tank which had been removed and noticed that it was rusted. He could not determine if the tank was the source of the latest leak. 15. Inspector Hennessy could not determine who was responsible for the water leak. 16. Respondent is not responsible for the water leak. Mr. Weatherford credibly testified that he only performed a visual inspection of the reverse osmosis system and that he did not touch any part of the system. 17. Complainant agreed to have his rusted tank removed and replaced with a new unit. Respondent did not force Complainant to agree to that work.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. There is no credible evidence that Respondent did not perform its work in a workmanlike manner. 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. There is insufficient evidence to establish that Respondent caused the water leak and the resulting water damage in Complainant’s kitchen.

RECOMMENDED ORDER

The Citation and Complaint in Case No. G08-0237 shall be dismissed on the effective date of the Order entered in this matter. 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 45 days from the date of that certification.

Done this day, July 23, 2008

______________________________________ Brian Brendan Tully 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 ___________________________

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