ALJDEC decisions subject to certification as final

2010A-308475853-ROC · Registrar of Contractors · 2012-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2012, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Marieke McCallister. 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 K-39 (No. 172596) License issued by the Registrar of Contractors. 2. This is a residential matter where on September 11, 2008; the Respondent replaced the compressor on the Complainant’s existing air conditioning system. 3. There was no dispute that the compressor failed on October 2, 2009. 4. Undisputed credible testimony and evidence established that the compressor failed beyond the manufacturer’s one year warranty for the compressor. 5. The Complainant was dissatisfied with the Respondent’s workmanship and failure to resolve this matter to his satisfaction despite repeated his requests that it do so. 6. When the Respondent failed to comply with the Complainant’s repeated requests, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on November 3, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s air conditioning system. 8. The Corrective Work Order provides, in pertinent part, as follows: 1) Complaint of: “Contractor failed to replace suction line filter”, jobsite found contractor installed new filter but did not remove old filter, contractor to correct by appropriate means. 2) Complaint of: “After work began contractor asked for $407.00 for “virgin freon” [sic], money issue, not an ROC matter, no action required.

9. Undisputed credible testimony and evidence established that the Respondent attempted to comply with the terms of the written Corrective Work Order and that the Complainant denied the Respondent an opportunity to do so. 10. The Complainant’s denial of access is found to be unreasonable. 11. Credible testimony and evidence established that the Respondent was ready and willing to comply with the terms of the Corrective Work Order if reasonable access had been provided. 12. The unreasonable denial of access is found to preclude a finding that the Respondent failed to comply with the terms of the Corrective Work Order issued in this matter. 13. There was no dispute that the Respondent did install a new filter but failed to remove an old filter when the Respondent installed the compressor on the Complainant’s existing air conditioning system. 14. Credible testimony and evidence established that the Respondent’s failure to remove the old existing filter when the Respondent installed the new compressor is in violation of applicable workmanship and industry standards. 15. The credible evidence of record is insufficient and fails to support any finding that the Respondent’s failure to remove the old filter caused the compressor to fail. 16. The Complainant’s claim for money damages based upon the Respondent’s failure to remove the old filter are found to be more than mere restitution and may be pursued in a civil court of competent jurisdiction. 17. Notice is taken of the Respondent’s 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). 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. Credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 4. In view of the finding that the Respondent was denied a reasonable opportunity to comply with the terms of the Corrective Work Order in this matter, no violation of the charged provisions of A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action) is supportable. 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 placed on disciplinary probation for a period of Thirty (30) days. 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, February 3, 2012.

/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