ALJDEC decisions subject to certification as final

2010A-308475800-ROC · Registrar of Contractors · 2011-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by its President and Qualifying Party William Rudd Gruntler.

WITNESSES: Dennis Cook, ROC Inspector Tai-Ying Keith

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship with regard to an air handler installed by Respondent. Respondent denies the allegations. The Citation and Complaint issued by the Registrar of Contractors (“ROC”) cites provisions prohibiting poor workmanship and requiring compliance with an ROC Corrective Work Order. 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 C-61.216753-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform limited remodeling and repair work. The Qualifying Party on the license is William Rudd Gruntler. 2. In July 2010, Complainant hired Respondent to install a new air handler at her house. Respondent performed the work. Complainant was not happy with the size of the handler that was installed, nor was she happy with the installation. 3. Complainant filed a complaint against Respondent regarding the air handler in September 2010. ROC Inspector Dennis Cook inspected the air handler on February 5, 2011.[1] He found that the installation was correct except for a gap in ductwork. On February 16, 2011, he issued a Corrective Work Order (“CWO”) directing Respondent to fix the gap within 15 days. 4. Complainant testified at hearing that Respondent contacted her before the ROC inspection on February 5 and asked if Respondent could come to the site and see what needed to be done to fix the air handler. Complainant decided that she only wanted Respondent to come to the inspection when Inspector Cook was there. She also testified that a few days after the inspection, she had another contractor put a new air conditioning system in her house. That system replaced the air handler that Respondent had put in and the new contractor corrected the gap. 5. Complainant acknowledged during her testimony that Respondent did not have an opportunity to comply with the CWO after it was issued because she had already put in a new system and fixed the gap. 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 violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibiting poor workmanship) and (A)(23)(requiring compliance with a Corrective Work Order). The record does not show those violations. 3. Arizona Revised Statutes (A.R.S.) § 32-1155(C)(2) prohibits the ROC from citing a contractor “for failure to perform work in a professional and workmanlike manner” if the “contractor's work has been subject to neglect, modification or abnormal use.” Here, Complainant had Respondent’s work modified by another contractor before issuance of the Citation and Complaint.[5] Therefore, Respondent cannot be found to have violated A.R.S. § 32-1154(A)(3) for poor workmanship. 4. The evidence does not show that Respondent failed to comply with the CWO, because, due to the other contractor’s correction of the work before the CWO was issued, Respondent did not have a chance to perform the corrective work ordered by the CWO. 5. 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 Action Arizona Home Improvements Inc. 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, June 29, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The complaint file had been closed due to lack of response from Complainant and then re-opened. [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). [5] The Citation and Complaint in this case was issued on March 7, 2011.

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