ALJDEC decisions subject to certification as final

09F-3827-ROC · Registrar of Contractors · 2009-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 2009 APPEARANCES: Complainant Jason Remmers appeared on his own behalf. Joe Presley appeared on behalf of Respondent Sonoran Air, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Sonoran Air, Inc. (“Sonoran”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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 Sonoran is the holder of a Class C-39R license (No. 095993) issued by the Registrar of Contractors (“ROC”). Complainant Jason Remmers purchased his newly constructed home from general contractor, Taylor Woodrow Homes. Sonoran was Taylor Woodrow Homes’ HVAC subcontractor. Sonoran installed the HVAC system in Mr. Remmers’ home. After moving into the home, Mr. Remmers contacted Sonoran several times to complain that the air conditioning system was not adequately cooling the rear of the home. Sonoran responded to the service calls. However, Mr. Remmers was dissatisfied with Sonoran’s response. Sonoran advised Mr. Remmers that the solution to the problem was to install a zone system, for which he had not paid, and that he could upgrade the system for an additional four to five thousand dollars. Sonoran’s technician explained that the issue was Taylor Woodrow Homes’ design of the home, and that Sonoran could do no more. On January 9, 2009, Mr. Remmers filed a complaint against Sonoran with the ROC alleging that the air conditioning unit is not cooling the back half of the house. ROC Inspector Rick Oelke investigated Mr. Remmers’ complaint. On January 30, 2009, Inspector Oelke conducted a jobsite inspection. Mr. Remmers and Tim Cordero, Sonoran’s representative, were present for the jobsite inspection. On February 9, 2009, following the jobsite inspection, Inspector Oelke issued a “No-action” letter to the parties advising that Mr. Remmers’ complaint should be closed because a fair assessment of the air conditioning system could not be made due to the outside ambient air temperature. The letter further stated, “The contractor has agreed to assess the performance of the system based on flow-hood instrument readings taken at the residence (with contractors’ (sic) instruments) vs. design parameters.” Inspector Oelke reported those results in the letter. Inspector Oelke testified that Sonoran was to supply the design parameters for the home, and did so on February 5, 2009. However, there were errors in the calculations. Therefore, there were no design parameters that could be applied to the jobsite inspection results. Inspector Oelke testified that it was not possible for him to determine if the system would have met ROC minimum standards. Inspector Oelke performed a pre-hearing inspection on July 31, 2009. At that time the system had been modified by Mr. Remmers, as he had installed a zone system. Mr. Remmers testified that Sonoran failed to “do a heat loss program”. Consequently, Sonoran did not install a proper system to cool the house. Mr. Remmers testified that he personally installed a multi-zone system in his home, although he is not a licensed HVAC contractor. Mr. Remmers testified that he wants Sonoran’s license disciplined because it failed to run a heat loss program. However, Mr. Remmers failed to present any probative or substantial evidence establishing that a heat loss program was not run by Sonoran. Joe Presley, Sonoran’s service manager, credibly testified that Sonoran installed the system per the builder’s plans and specifications, and that a heat loss program was run and that is how Sonoran calculated the tonnage for the system. Mr. Presley testified that Sonoran would have been willing to perform further work. However, Mr. Remmers already performed his own work to the system. CONCLUSIONS OF LAW In this proceeding, Mr. Remmers bears the burden to prove, by a preponderance of the evidence, that Sonoran is subject to discipline for violations of A.R.S. § 32-1154(A)(3) and/or (A)(7) as charged by the ROC in its May 28, 2009 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Remmers failed to meet his burden of proof as to both of the ROC’s charges. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Sonoran with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the evidence of record, that Mr. Remmers failed to establish that Sonoran failed to perform its work at his home in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Sonoran did not violate A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the evidence presented at hearing, that Mr. Remmers failed to establish that Sonoran committed wrongful or fraudulent acts that substantially injured him. Therefore, the Administrative Law Judge concludes that Sonoran did not violate A.R.S. § 32-1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Sonoran’s license. The ROC’s Citation in Case Number 09-3827, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Sonoran’s license, and that the Citation issued in Case Number 09-3827, together with the Complaint upon which it is based, be dismissed. 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. Done this day, August 18, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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