ALJDEC decisions subject to certification as final

2010A-308472380-ROC · Registrar of Contractors · 2011-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Steve Nold. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s Class K-39 (No. 238271) License expired on November 1, 2010. 2. The Respondent is no longer functioning as a licensed contractor in the State of Arizona. 3. This is a residential matter where the Respondent was the HVAC subcontractor for the construction of the Complainant’s new residence. 4. Undisputed credible testimony and evidence established that the HVAC system in the new residence stopped working in August 2008. 5. The Complainant immediately notified his general contractor and the Respondent of the problem with his HVAC system. 6. Credible testimony and evidence established that both the general contractor and the Respondent declined to respond to the problem with the Complainant’s HVAC system on the basis that the Complainant’s one year warranty had expired. 7. When the Respondent refused to correct the problems with the new HVAC system, the Complainant retained an alternative licensed contractor, identified as AC by Jay, to examine and determine the cause of the problem with the HVAC system. 8. Undisputed credible testimony and evidence established that the Complainant paid the alternative HVAC contractor $138.00 to perform the inspection. 9. Undisputed credible testimony and evidence established that the alternative HVAC contractor found numerous problems with the new HVAC system but did not restart the new HVAC system. 10. The Complainant then retained a second alternative contractor, identified as Omega, which again conducted an onsite inspection and provided the Complainant with a written report of its onsite inspection and restarted the Complainant’s HVAC system. 11. Undisputed credible testimony and evidence established that the Complainant paid Omega the sum of $400.00 for its work including the inspection and written report. 12. The Complainant’s actions, in causing alternative HVAC contractors to inspect and restart his HVAC system so that he could have air conditioning in his residence during the summer of 2008, are found to be reasonable and justified under the circumstances. 13. Both of the alternative HVAC contractors informed the Complainant that he had a two year warranty for workmanship rather than the one year warranty claimed by the general contractor and the Respondent. 14. The Respondent did not dispute that there was a two year warranty period rather than the one year warranty originally claimed by the Respondent. 15. There was no dispute that the problems with the Complainant’s HVAC system did occur within the applicable two year warranty period. 16. Credible testimony and evidence established the Complainant and his family were without air conditioning for approximately two (2) weeks during the month of August 2008. 17. The Complainant was extremely dissatisfied with the Respondent’s workmanship and with the fact that he and his family had to endure two weeks without air conditioning during August 2008, and filed a formal Complaint against the Respondent with the Registrar of Contractors. 18. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order. 19. Credible testimony and evidence established that the Respondent has caused the Corrective Work Order to be fully complied with. 20. Credible testimony and evidence established that no further corrective work is required on the Complainant’s HVAC system. 21. Credible testimony and evidence established that the Complainant’s claim for restitution for his costs of having two alternative HVAC contractors inspect the new HVAC system and the Complainant’s claim for his alleged additional electrical expenses were not addressed in the Corrective Work Order. 22. The Complainant is seeking restitution for his costs in causing the two alternative contractors to examine and restart his air conditioning system and for the cost of the zone board that no longer performs a function as part of the HVAC system in his residence. 23. The Complainant also seeks payment for his increased costs of running the air conditioning system in his residence due to the defects caused by the Respondent’s poor workmanship. 24. Undisputed credible testimony and evidence established that the Respondent charged the Complainant the sum of $400.00 for the zone board and the zone board installation. 25. There was no dispute that the contractor that performed the corrective work on the new HVAC system bypassed the zone board that had been installed by the Respondent and that the zone board was no longer a functioning part of the HVAC system in the Complainant’s residence. 26. Undisputed credible testimony and evidence established that zone board no longer serves any purpose and that the Complainant received no value for the money that he paid the Respondent for the zone board and the installation of the zone board. 27. Credible testimony and evidence established that the Complainant is entitled to restitution for his costs of having the two alternative HVAC contractors inspect and restart his HVAC system in the total amount of $538.00. 28. Credible testimony and evidence established that the Complainant is entitled to restitution for his costs of the zone board which no longer serves a purpose in his HVAC system in the total amount of $400.00. 29. Credible testimony and evidence established that the Respondent’s failure to respond promptly and properly correct the problems with the Complainant’s new HVAC system during the month of August 2008, is a violation of 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). 30. There was no dispute that the Respondent failed to comply with the applicable provisions of A.R.S. § 32-1124(B) (Display of license number).

31. The Complainant asserts that he had to pay several thousand dollars in additional energy costs as a result of the Respondent’s poor workmanship and presented an analysis based upon what energy costs were for a similarly sized residence during the same time period. 32. The Complainant’s claim for increased energy costs will necessarily involve a monetary adjudication and is found to be a claim for damages rather than a claim for restitution. 33. The Complainant’s claim for monetary damages may be pursued in a civil court of competent jurisdiction. 34. Notice is taken of the Respondent’s good prior License record with the Registrar of Contractors. 35. The fact that the Complainant was without air conditioning for approximately two weeks during the month of August 2008, is found to be a factor in aggravation. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that 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. Credible testimony and evidence supported a finding which established that the Respondent complied with the terms of the Corrective Work Order issued in this matter. Accordingly, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action) is supportable. 5. Credible testimony and evidence supported findings which established violations by the Respondent of the charged provisions of A.R.S. §32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license), and 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). 6. A.R.S. § 32-1156.01 provides that an administrative law judge may recommend that a licensee provide restitution to any person who is injured or who property is damaged by an action of the licensee. RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid restitution to the Complainant in the total sum of $938.00 representing the cost of the HVAC zone board in the sum of $400.00 and the sum of $538.00 that the Complainant was required to pay alternative HVAC contractors to inspect and restart the Complainant’s new HVAC system so that the Complainant could have air conditioning in his residence during the summer of 2008. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, on or before the effective date of this Order, then the above provided License revocation shall not take place and this matter shall be closed. 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, February 22, 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