ALJDEC decisions subject to certification as final

2009A-1990241-ROC-rhg · Registrar of Contractors · 2011-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 17, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Holly Davies. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. The Registrar’s Order Granting Petition for Rehearing provides, in pertinent part, as follows: Upon review and consideration of Respondent’s Petition for Rehearing, as well as the entire file, and with good cause appearing, IT IS ORDERED that Respondent‘s Petition for Rehearing be GRANTED in accordance with A.A.C. R4-9-120 (C) (1) and (5). Justification: Arizona case law has long recognized that the error of a secretary can excuse an untimely filing. See Cook v Industrial Commission of Arizona, 133 Ariz. 310, 651 P.2d 365 (1982). IT IS FURTHER ORDERED that a full Rehearing be scheduled in the ordinary course of docketing in the Phoenix area. A Notice of Rehearing will be issued in due course. 2. The Respondent is the holder of a Class B (No. 143522) License issued by the Registrar of Contractors. 3. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent located at 15737 S. Camino Del Dragon, Sahuarita Arizona. 4. The Complainant was dissatisfied with the HVAC system in the new residence and retained a professional engineer and a home inspection service to inspect the HVAC system in the Complainant’s residence. 5. On September 30, 2008 Acorn Consulting Services LLC issued a written report which states that the Complainant’s HVAC system had not been properly installed in the Complainant’s residence and that corrective action was necessary for the Complainant’s HVAC system to function properly. 6. Credible testimony and evidence established that the Complainant furnished the Respondent with the results of the inspections of the HVAC system in his new residence and demanded that the Respondent buy the house back from the Complainant. 7. The Complainant also demanded that the Respondent pay the Complainant for his alleged monetary damages. 8. Credible testimony and evidence established that the Complainant repeated his demands in subsequent communications with the Respondent. 9. When the Respondent failed to respond to his repeated demands the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 10. Credible testimony and evidence established that the Respondent then responded to the filing of the formal complaint with the Registrar of Contractors and promptly contacted the Complainant. 11. Credible testimony and evidence established that the Complainant allowed the Respondent and the Respondent’s representatives, including a licensed HVAC contractor, access to his residence on April 6, 2009. 12. Credible testimony and evidence established that during the onsite inspection of April 6, 2009, the Respondent offered to perform corrective work on the HVAC system in the Complainant’s residence. 13. Credible testimony and evidence established that the Complainant denied the Respondent the requested opportunity to correct the HVAC system in his residence on the stated basis that the Complainant wanted the Registrar of Contractors Inspector to inspect and evaluate the HVAC system before the Respondent made any repairs to the HVAC system. 14. An assigned Agency Inspector then conducted an on-site inspection and on May 1, 2009, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 15. Credible testimony and evidence established that the Respondent then made repeated unsuccessful attempts to gain access to the Complainant’s residence to attempt to comply with the terms of the written Corrective Work Order. 16. Credible testimony and evidence established that the Respondent was ready and willing to make a good faith attempt to fully comply with the terms of the written Corrective Work Order issued in this matter. 17. Credible testimony and evidence established that construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project in order to bring the final work product up to appropriate industry standards. 18. Credible testimony and evidence established that a licensed contractor should be given a reasonable opportunity to complete necessary remedial work to correct its poor workmanship before the imposition of disciplinary action against the contractor’s license. 19. The Complainant’s actions, in failing to respond to the Respondent’s repeated attempts to gain access to his residence to perform the corrective actions set forth in the Corrective Work Order, are found to be unreasonable and to constitute a denial of access. 20. Credible testimony and evidence established that no corrective work was performed on the HVAC system at the Complainant’s residence due to the Complainant’s unreasonable denial of access. 21. Undisputed credible testimony and evidence established that the residence at issue has been foreclosed on and that the property was sold at public auction on February 2, 2010. 22. Undisputed credible testimony and evidence established that neither party now has access to the residence located at 15737 S. Camino Del Dragon, Sahuarita Arizona and that no corrective action to the HVAC system is possible without access to the residence at issue. 23. Credible testimony and evidence established that the Complainant denied the Respondent reasonable access to his residence and that as a consequence thereof the Respondent was denied an opportunity to attempt to comply with the terms of the Corrective Work Order issued in this matter. 24. There was no credible evidence of a fraudulent or wrongful act by the Respondent. 25. The Complainant’s claim for monetary damages can be resolved in a civil court of competent jurisdiction. 26. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. 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). 2. 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). 3. Proof by preponderance of the evidence “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 testimony and evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (7) (Wrongful or fraudulent act). 5. The credible testimony and evidence of record was insufficient and failed to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action). 6. The credible evidence of record is insufficient and failed to sustain a finding of violations by the Respondent of the provisions of A.R.S. §32- 1154 (A) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (7) (Wrongful or fraudulent act), as charged in the Citation herein. 7. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (3), namely rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the unreasonable denial of access in this matter it is recommended that no disciplinary action be imposed on the Respondent’s License and that this matter 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, March 1, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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