ALJDEC decisions subject to certification as final

2010A-308474592-ROC · Registrar of Contractors · 2011-04-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by David Harvey, Respondent’s HVAC Manager and Qualifying Party.

WITNESSES: Beau Cruz, ROC Inspector Diane Stanford David Harvey

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to comply with an order issued by the Registrar of Contractors. The claims against Respondent concern the air conditioning system installed by Respondent at her home. Respondent denies the allegations. At the beginning of the hearing, Complainant testified that the air conditioning system is working properly at this time. Her contention at the hearing concerned the length of time it took Respondent to get the system working properly and the time in which it took Respondent to comply with a Corrective Work Order. Therefore, the evidence at the hearing focused on those timing issues. 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 K-39.145922-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning and heating systems (excluding solar) for both residential and commercial properties. The Qualifying Party for the license is David Harvey. 2. In May 2010, Respondent installed a new air conditioning system in Complainant’s manufactured home, replacing the condenser, air handler, and thermostat of the existing system. On June 16, 2010, about one month after the installation, Complainant called Respondent for service because the system was not cooling the home and the temperature in the house was 88 degrees. Respondent performed various tests and adjustments to the system. Respondent fixed a leak and replaced the coolant, which took six hours. Upon completing those repairs, Respondent believed that the system was working properly. 3. On June 18, 2010, Complainant was still complaining about the high temperature in the home. Respondent went back out to the home and replaced the thermostat. This was the start of many visits by Respondent to the home to work on the system. 4. Throughout the remainder of June and into July, Respondent made numerous visits to Complainant’s home to work on the system, changing various parts and making adjustments. Respondent worked with the manufacturer of the system to address the continuing problems. David Harvey, Respondent’s HVAC Manager, testified that both Respondent and the manufacturer were having difficulty determining the root cause of the problems. Respondent continued working on the problems, but Complainant was not happy with the situation and filed an ROC complaint on July 21, 2010. 5. On August 9, 2010, ROC Inspector Beau Cruz inspected the system and confirmed that the system was not working properly. He issued a Corrective Work Order (CWO) ordering Respondent to correct the system, focusing on the thermostat. 6. Respondent continued to work on the system through August and into September. This included significant repairs such as replacing the coil and making adjustments to the air flow in the system. David Harvey credibly testified that the various problems stemmed from the fact that the home was older and was not originally built with an air conditioning system. The system was added to the home later. He testified that it took time to balance the system with the new equipment that Respondent had installed. Eventually, as of September 8, 2010, the system was working properly without continued frequent repair visits. 7. The record shows that Respondent was diligent in its efforts to correct the problems with the system, both before issuance of the CWO and after. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] 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.[3] 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 R4-9-108 (prohibits poor workmanship), and (A)(23) (requires compliance with a CWO).[4] 3. For the reasons that the system is now in working order and that Respondent diligently pursued correction of the problems, the evidence does not show that Respondent violated the cited provisions. 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 Christian Brothers Plumbing Co. Inc. dba Christian Brothers Heating and Air Conditioning 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, April 5, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [4] The Citation and Complaint also cites provisions relating to the display of an ROC number on documents and minimum elements of a contract. Respondent has been sent written notification by the ROC about those provisions and no further action is warranted.

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