ALJDEC decisions subject to certification as final

2010A-308475650-ROC · Registrar of Contractors · 2012-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2012 APPEARANCES: Karen Welch appeared personally. Brian Girard Cover appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Brian Girard Cover, doing business as Desert State HVAC (“Respondent”), is the holder of License No. 151668, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On April 17, 2010, Respondent entered into a contract with Karen Welch (“Complainant”) for the performance of HVAC work at Complainant’s residence located at 9801 South 44th Street, Phoenix, Arizona. 3. On September 3, 2010, Complainant filed a written Complaint with the Registrar alleging workmanship deficiencies by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The Registrar’s assigned inspector, Beau Cruz, performed his first inspection of Complainant’s residence on September 22, 2010. As a result of that inspection, Inspector Cruz issued a letter dated October 4, 2010, that addressed each of the Complaint items. Inspector Cruz advised the parties that he was unable to find Respondent responsible for the Complaint items. 7. By letter dated October 28, 2010, Complainant wrote to the Registrar’s Director, William A. Mundell, to express her disagreement with Inspector Cruz’s findings. 8. Inspector Cruz performed a second jobsite inspection on August 26, 2011. As a result of that inspection, Inspector Cruz issued a Corrective Work Order dated August 31, 2011, that required Respondent to correct the following items by appropriate means: 1) the air flow in Complainant’s residence needed to be uniformly distributed; 2) the thermostat was not reading properly and needed proper repairs or adjustment necessary to operate properly; 3) Respondent was required to investigate why the new unit was running most of the time and was inefficient; 4) trussing in the garage that was cut to install a new air handler needed to be inspected by a structural engineer and installed per the structural engineer’s instructions; and 5) Respondent was required to ensure that the ductwork was properly insulated. Inspector Cruz was unable to verify if Respondent installed new ductwork to the back rooms of Complainant’s residence due to restricted access to the attic from Complainant’s garage. 9. The evidence of record established that Respondent completed the remedial work required by the Corrective Work Order in a workmanlike manner in compliance with local building code requirements and the instructions of a structural engineer. 10. Complainant’s contention that Respondent did not perform such repairs in a workmanlike manner is not supported by the evidence of record. Although Complainant’s expressed concerns, frustration, and aggravation regarding the problems she has experienced on the subject project are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacement of resultant poor workmanship prior or subsequent to completion of a specified project in order to bring the final work product up to appropriate industry standards. In this regard and in this case, a contractor should be given a reasonable opportunity to complete necessary remedial work. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent completed the remedial work in compliance with local building code requirements and in compliance with the instructions of a structural engineer for the trusses in the garage. 4. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent performed the required remedial repairs necessary to bring his work within workmanship standards. 5. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent complied with the Registrar’s Corrective Work Order by completing his work in a workmanlike manner in compliance with local building code requirements and as instructed by a structural engineer. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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, February 13, 2012.

/s/ Brian Brendan Tully 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