ALJDEC decisions subject to certification as final

09F-T0222-ROC · Registrar of Contractors · 2009-07-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2009 at 9:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Todd Baker. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class C-39R License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into an agreement with the Complainant to install HVAC ducting for a game room addition that was being constructed for the Complainant’s existing manufactured residence. 3. The Complainant experienced repeated problems with airflow through the new duct work system and was unable to properly cool his residence. 4. The Complainant contacted the Respondent and notified the Respondent of the problems with cooling his residence. The Respondent performed additional duct work on the residence in attempt to increase the HVAC system’s ability to properly cool the Complainant’s residence. 5. When the additional work on the duct system failed to resolve the problem, the Complainant retained an alternative contractor to inspect the duct work system and install a programmable thermostat. 6. The alternative contractor performed corrective work on the duct work and installed the programmable thermostat but the HVAC system still failed to satisfactorily cool the Complainant’s residence. 7. The Complainant then crawled under the manufactured residence and personally inspected the entire duct work system and found that the main duct to the south side of the residence was not connected and was directing cold air to the space below the manufactured residence. 8. The Complainant then connected the loose duct work and the HVAC system worked properly. 9. The Complainant then demanded that the Respondent refund all of the money he had paid the Respondent for the Respondent’s additional duct work in the total sum of $1,587.17. 10. When the Respondent declined to comply with the Complainant’s demand, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. No onsite inspection was performed because the only item at issue was the Complainant’s claim for monetary restitution. 12. The credible testimony and evidence of record is inadequate and fails to support a finding as to when or why the duct work came loose. 13. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of restitution is due and owing to the Complainant from the Respondent. 14. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith and therefore precludes a finding that a liquidated sum of restitution is owed to the Complainant. CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. 2. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 3. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 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). 4. The credible evidence of record was inadequate to support any finding of a violation of the charged provisions of A.R.S. § 32-1154: (A)(7) (Wrongful or fraudulent act) and 32-1154(A)(3), namely Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based shall be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, July 28, 2009.

______________________________________ M. Douglas 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 ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com