ALJDEC decisions subject to certification as final

2010A-308474027-ROC · Registrar of Contractors · 2011-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2011 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Christopher Faneuf. 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 is the holder of a Class C-39R (No. 262458) License issued by the Registrar of Contractors. 2. There was no dispute that on June 10, 2010, the Complainant’s adult daughter experienced a problem with her air conditioning system. 3. There was no dispute that the Complainant’s daughter has small children and that the outside temperature during the day in the area where the residence at issue is located was over one hundred degrees Fahrenheit. 4. Credible testimony and evidence established that the Complainant contacted an unidentified HVAC contractor which informed the Complainant that there was a problem with the motor for the air conditioning system and that the entire air conditioning system required replacement. 5. The Complainant was unwilling to replace the entire HVAC system and contacted the Respondent. 6. The Respondent then gave the Complainant a telephone bid to replace the motor for the sum of $691.00. 7. The Complainant accepted the Respondent’s proposal and the Respondent then replaced the motor for the HVAC system and presented the Complainant with a written proposal/invoice for the agreed upon sum of $691.00. 8. Credible testimony and evidence established that the new motor failed to correct the problems with the HVAC system. 9. The Respondent then performed a complete inspection of the HVAC system and found that a circuit board had burned out. 10. The Respondent then replaced the old circuit board on June 11, 2010, with a new circuit board. 11. The Respondent asserted that the HVAC system was working properly when the Respondent left the residence on June 11, 2010. 12. The Complainant asserted that the HVAC was still not operating properly and that he complained to the Respondent. 13. There was no dispute that on June 12, 2010, the Respondent returned to the residence and installed a new run cap and then left the residence. 14. The Respondent asserted that the HVAC system was operating properly when the Respondent left the residence on June 12, 2010. 15. The Complainant asserted that the HVAC system failed again and that the Complainant attempted to contact the Respondent on June 13, 2010. 16. Credible testimony and evidence established that the Complainant was unable to contact the Respondent on June 13, 2010. 17. Credible testimony and evidence established that the Respondent is a small HVAC contractor and that the Respondent’s owner and qualifying party, Christopher Faneuf, was out of town and unavailable when the Complainant attempted to contact him on June 13, 2010. 18. When the Complainant was unable to contact the Respondent, the Complainant contacted an unlicensed person who allegedly worked for a licensed commercial HVAC contractor. 19. The Complainant testified that the unlicensed person inspected the HVAC system and informed the Complainant that the new motor had been improperly wired. 20. The Complainant then allegedly paid the unlicensed person $250.00 to properly wire the new motor. 21. The Complainant did not obtain a receipt for the money that he allegedly paid the unlicensed person. 22. There was no dispute that the HVAC system is now working properly and that no further corrective action on the HVAC system is required at this time. 23. The Complainant was extremely dissatisfied with the Respondent’s failure to correct the problems with the HVAC system in a timely manner. 24. The Complainant was particularly unhappy with the number of days that his daughter and grandchildren had to live in a house with insufficient air conditioning. 25. There was no dispute that the Complainant contacted the Respondent and expressed his extreme dissatisfaction to the Respondent. 26. When the parties were unable to satisfactorily resolve the Complainant’s dissatisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 27. There was no onsite inspection because there was no dispute that the HVAC system had been worked on by a third party and that the HVAC system was working properly. 28. The Complainant seeks restitution for the $250.00 that the Complainant allegedly paid the unlicensed person to correct the allegedly improper wiring to the new motor. 29. The credible evidence of record is insufficient and fails to support a finding as to the exact amount of money that the Complainant allegedly paid the unlicensed person to work on the HVAC system at issue. 30. The credible evidence of record insufficient and fails to support a finding that the Respondent’s work on the HVAC system at issue caused the alleged continuing problems with the HVAC system on the residence at issue. 31. The credible evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship on the HVAC system at issue failed to comply with applicable workmanship and industry standards. 32. The credible evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 33. Credible testimony and evidence established that the Respondent failed to properly display its license number on the proposal/invoice that the Respondent presented to the Complainant. 34. 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 Complainant failed to sustain his burden of proof to establish that the Respondent violated the charged provisions of 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, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 5. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 (A) (13) (Failure in any material respect to comply with this chapter), namely, A.R.S. § 32-1124 (B) (Display of license). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the provisions of A.R.S. § 32-1124 (B). It is further recommended that if the Respondent properly provides acceptable proof that it is in full compliance with the provisions of A.R.S. § 32-1124 (B) on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter 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, January 13, 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