ALJDEC decisions subject to certification as final

09F-0923-ROC · Registrar of Contractors · 2009-08-31

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2009 APPEARANCES: Complainant: Sharon L. Roberts appeared, pro per, Respondent: Michael Paris Robert, partner and qualifying party, appeared, pro per. Registrar of Contractors: Inspector Jeff Wills appeared on behalf of the Registrar of Contractors. 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 this tribunal’s May 28, 2009 Order Granting Continuance. 2. Complainant Sharon L. Roberts (“Complainant”) is the owner of a residence located at 1013 N. 25th Place, Phoenix, Arizona (“premises/project”). 3. Respondents Michael Paris Robert (“M. Robert”) and Vera Joy Robert are individuals doing business as A A A Cooler Specialists, a partnership. M. Robert, partner, is the qualifying party for Arizona Contractor’s License No. 202334, Class C-39R (Residential Air Conditioning and Refrigeration) issued by the Registrar of Contractors (“ROC/Registrar”) on December 10, 2004. A review of the licensing database maintained by the ROC indicates that this license was cancelled January 30, 2007. 4. Complainant filed a Complaint with the ROC on August 14, 2008, wherein she alleged, inter alia, that on August 14, 2006, Respondent “installed a defective cooler and misrepresented the model.” 5. ROC Inspector Jeff Willis (“Willis”) conducted a jobsite inspection on September 12, 2008, and issued a correspondence on September 25, 2008, which required no corrective action by Respondent. 6. Complainant filed a request for citation on October 3, 2008. 7. On February 26, 2009, the Registrar issued a Citation and Complaint in Case No. 09-0923 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7), (3) (namely, R4-9-108, the workmanship rule) and (13) (namely, A.R.S. § 1124 (B)). 8. Respondent filed an Answer on March 10, 2009, wherein was asserted a general denial of all allegations. 9. At the hearing, Complainant testified and submitted Exhibit C-1 which was marked, admitted and considered. 10. Robert testified and submitted Exhibits R-1 and R-2 which were marked, admitted and considered. Exhibit R3 was admitted over objection. Kurt Robert (“K. Robert”), employee, also testified on behalf of Respondent. 11. Inspector Willis testified on behalf of the Registrar and described his observations and conclusions on his original jobsite inspection and August 7, 2009 pre-hearing jobsite inspection. 12. On August 14, 2006, Respondent installed an evaporative air cooler (“unit”) on the premises. Complainant testified that she noticed an unacceptable noise emanating from the unit on the evening of the installation and notified Respondent of the purported problem. 13. Respondent representatives returned to the premises on August 15 and 21, and September 11, 2006, to inspect the unit for the noise. Robert and K. Robert testified that no unusual noise and/or problem were present. 14. Due to Respondent’s failure to remedy the unit’s problem, Respondent had the unit replace in 2007 by another contractor. 15. Inspector Willis testified that he could not determine whether the unit was defective, the model misrepresented and/or was the proper size, i.e., a 4500 vs. a 4001 cfm, due to the prior replacement of the unit by Complainant. 16. Complainant contends the unit was a 4100 cfm[1] instead of a 4500 cfm model as represented by Respondent. Robert testified that the cfm of a unit depends on the horse power of the motor installed, i.e., 1/3 vs. ½. Robert further testified that the unit in question had a ½ horse power motor which falls within the acceptable standards for evaporative coolers. 17. No copy of the contract between the parties was submitted into evidence.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case No. 09- 0923 charged Respondent with possible violations of A.R.S. § 32-1154 (A) (7), (3) (namely R4-9-108) and (13) (namely, A.R.S. § 32-01124 (B)). 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.

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3. Violation of any rule adopted by the Registrar. … 13. Failure in any material respect to comply with the provisions of this chapter.

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. A.R.S. §32-1124 (B) is named as the statute violation charged pursuant to A.R.S. §32-1154A (13). That statute provides that every license and/or renewal must be signed by the Registrar or the Registrar’s designated representative and the licensee. It further provides that every license number must be preceded by the acronym “ROC” and be posted in a conspicuous place on premises where any work is being performed, on all written bids submitted by the licensee and on all advertising, letterheads and other documents used by the licensee in the conduct of business.

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. § 32-1154 (A) (7), (3) (namely, A.A.C. R4-9- 108, the workmanship rule) and (13) (namely, A.R.S. § 32-1124 (B)).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation in Case No. 09-0923 be dismissed.[2] Done this day, August 31, 2009.

______________________ Brian E. Smith Administrative Law Judge

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

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

By ______________________ ----------------------- [1] Cubic feet per minute of air delivered. [2] 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