ALJDEC decisions subject to certification as final

2010A-308473746-ROC-com · Registrar of Contractors · 2011-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through Carol Errico. The Respondent appeared through its authorized representative, Brett Wright. ADMINISTRATIVE LAW JUDGE: M. Douglas

This matter came on for a Compliance Hearing to determine whether the Respondent has engaged in conduct constituting violations of the charged provisions of A.R.S. § 32-1154 (A) and breached the terms of the parties’ Settlement Agreement. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made: FINDINGS OF FACT 1. The Order Reopening Complaint and Setting Compliance Hearing provides, in pertinent part, as follows: At the Compliance Hearing, the parties’ may offer evidence and testimony as to whether or not Respondent has engaged in conduct constituting violation of A.R.S. § 32-1154 (A)(1), (2), (3); namely, Rule R4-9-108 as set forth in the Citation and Complaint and breached the terms set forth in the parties’ Settlement Agreement.

2. There was no dispute that the Respondent installed a new HVAC system in the Complainants’ residence. 3. The Complainants were very dissatisfied with the Respondent’s workmanship and the functioning of the new HVAC system and filed a formal complaint against the Respondent with Registrar of Contractors. 4. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an onsite inspection, and the Registrar of Contractors declined to issue a citation against the Respondent’s license on the following basis: Complaint #1 - A Lennox representative was sent out to analyze the system. Although the representative did not specifically identify a design flaw in the system, there were recommendations to increase the efficiency of the dehumidification. The complainant had another licensed contractor offer his opinion, and D&H submitted their response. The inspection could not determine which load calculation is correct. The contractor agreed to make the corrections suggested by Lennox at no cost to the homeowners. Complain #2 -.” Some cupping of the laminate was observed, however the inspection did not show that the AC system was the cause of the problem. Complaint #3, #4 - These items are not within the Registrar of Contractor’s 2 year jurisdiction The complainant noted that there were holes drilled for the testing done by the Lennox Representative that were only covered with tape. The contractor agreed to correct that condition by appropriate means.

5. The Complainants disagreed with the determination of the Registrar of Contractors not to issue a Citation against the Respondent’s License and requested an administrative hearing. 6. An administrative hearing was scheduled on March 2, 2011. 7. After the commencement of the March 2, 2011 hearing, the parties reached a settlement agreement. 8. There was no dispute that the terms of the parties’ settlement agreement were read into the record and repeated in writing in the Order Vacating Hearing Re: Settlement. 9. Credible testimony and evidence presented at the compliance hearing established that the Respondent has fully complied with the terms of the parties’ settlement agreement in this matter. 10. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned or refused to perform work on the Complainants’ HVAC system without legal excuse. 11. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans, specifications or any building codes. 12. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its construction work in a professional and workmanlike manner. CONCLUSIONS OF LAW 1. The Complainants have 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). 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). 3. The Complainants failed to sustain their burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the charged provisions of A.R.S. § 32-1154 (1) (A) (abandonment), A.R.S. § 32-1154 (A) (2) (departure from or disregard of plans or specifications or any building codes), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. r4-9-108 (failure to perform work in a professional and workmanlike manner). 4. The Respondent has the burden of demonstrating by a preponderance of the evidence that the Respondent has fully complied with the terms of the parties’ settlement agreement. R2-19-119 (B). 5. Credible testimony and evidence supported findings which establish that the Respondent has fully complied with the terms of the parties’ settlement agreement.

RECOMMENDed order on compliance hearing In view of the foregoing, it is recommended 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, November 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