ALJDEC decisions subject to certification as final

2010A-308473041-ROC · Registrar of Contractors · 2011-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent appeared on his own behalf, accompanied by his wife Becky Powers and son Dustin Powers.

WITNESSES: Alice De Friese Ron Powers Dustin Powers

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship by Respondent with regard to maintenance on the air conditioning system at her home. Her claim is that Respondent did not perform proper maintenance such that the condensate drain line for her system clogged and caused water damage to the home. Respondent denies the allegation. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation.

FINDINGS OF FACT 1. Respondent is the holder of license C39R.105371-R issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning systems (excluding solar) for residential properties. Respondent is a sole proprietor. His son Dustin Powers is a service technician. 2. On May 20, 2009, Respondent performed maintenance on Complainant’s air conditioning unit. Dustin Powers was the service technician who performed the service. He completed a maintenance checklist at the time that is part of the record, and he testified at hearing as to what work he performed. That evidence shows that routine maintenance was performed, including “blow out” of the condensate drain line.[1] The drain line “blow out” is a process in which pressurized gas is blown through the condensate drain line to make sure the line is clear and will drain. Dustin Powers testified that the drain was clear when he performed the “blow out” on May 20, 2009. In addition, there was indication that the cooling coil was dirty and needed to be cleaned. That condition is common in a desert climate. Complainant was informed about the condition of her system, including that the coil may have needed cleaning and that the drain line was clear. 3. No other work was done to the system after the maintenance done by Respondent. More than three months later, in September 2009, Complainant experienced water damage in her home. It was determined that the cause of the water damage was that the drip pan under the A/C cooling coil had overflowed because the condensate drain line had clogged and backed up. Complainant blames Respondent for the damage, arguing that Respondent did not properly maintenance the system in May 2009 and that Respondent’s failure to do so caused the overflow in September 2009. 4. The evidence at hearing shows that no one was living in the home for two consecutive months between May 2009 and September 2009. Complainant testified that she might have turned the thermostat in the home to 80 degrees while she was away. 5. Both Respondent and Dustin Powers testified that a dirty coil will produce more condensation than normal and that humidity will increase condensation as well. They both testified that it is quite possible that rust clogged the drain after the maintenance was done and that the summer weather conditions and dirty coil caused an excess of condensation that then caused the overflow. 6. This tribunal finds that Complainant’s evidence is speculative and not sufficient to meet her burden of proof. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule, A.A.C. R4-9-108. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. 3. The evidence does not show that Respondent performed below minimum workmanship standards. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Ronald Gene Powers dba Tucson Air 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 will be 40 days from the date of that certification.

Done this day, January 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The condensate drain line is a pipe that takes condensation from a drip pan under the cooling coil to the outside of the house. The drip pan sits under the coil to collect the condensation that drips off the coil. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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