ALJDEC decisions subject to certification as final

2010A-308475973-ROC · Registrar of Contractors · 2011-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 2011, at 1:00 p.m. APPEARANCES: Complainant Carlton Howard appeared on his own behalf; Respondent Coolwater Pool and Spa, L.L.C. appeared through Scott Valint, its owner. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In May 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC219998, Class C-6 for residential swimming pool service and repair to Coolwater Pool and Spa, L.L.C. (“Respondent”). On September 21, 2010, the Registrar received a complaint from Carlton Howard (“Complainant”) against Respondent, alleging that Respondent had failed to complete repair of Complainant’s pool heater and had failed to return parts that it had taken. On November 24, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(1) and (13) (namely A.R.S. § 32-1124(B)). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that its contract was with Complainant’s home warranty company, not Complainant, that after its service technician had left the heater parts at Complainant’s house, the home warranty company cancelled Complainant’s warranty contract, and that the home warranty company would not authorize further repairs to Complainant’s pool heater. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 6, 2010. Complainant testified on his own behalf. Respondent’s qualifying party, Scott Valint, testified on its behalf. Hearing Evidence Complainant had a home warranty contract with Service One. Respondent is under contract with Service One to perform home repairs that are covered by Service One’s home warranty contracts with homeowners like Complainant. Complainant testified that in late July 2010, when he turned on the heater that heats both his pool and Jacuzzi, the heater spewed smoke everywhere and the water in the Jacuzzi turned brown. Complainant turned the heater off, called Service One, and requested that it repair the heater under the home warranty contract. Service One sent out Respondent to diagnose the problem with the heater. On July 29, 2010, Mr. Valint determined that no gas was coming through the orifice in the pilot assembly. To make this determination, Mr. Valint removed three parts: (1) The pilot assembly; (2) The pilot assembly bracket; and (3) The pilot tubing. The pool heater was on the side of Complainant’s house in an area that was not enclosed by a fence or other barrier. After Mr. Valint learned that Complainant did not have a dog, he left the parts that he had removed lying next to the pool heater so that he could obtain Service One’s authorization to replace the pilot assembly. Mr. Valint explained at the hearing that he wanted to avoid having to reassemble and dissemble the parts again when he returned to replace the pilot assembly. Mr. Valint testified that he has never had parts that he left on a homeowner’s property removed in the 18 years that he has been performing home warranty work. On August 26, 2010, after Service One authorized Respondent to replace the pilot assembly in Complainant’s pool heater, Mr. Valint returned and found that the three parts were no longer next to the pool heater. Because Mr. Valint could not replace the pilot assembly without the pilot assembly bracket and the pilot tubing, he left without performing any repairs. Subsequently, Complainant’s home warranty contract with Service One expired or was terminated. Service One did not authorize Respondent to complete its repair of Complainant’s pool heater. According to the Registrar’s electronic record, Respondent’s license is current and in good standing. This is the only complaint pending against the license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A contractor cannot be required to perform repairs for a party with whom the contractor has not contracted without compensation. However, once a contractor has started repairs at a property, the contractor cannot interrupt its performance of the repairs if the interruption leaves the property owner worse off than he would have been if the contractor had done nothing. In this case, Respondent’s disassembly of the pilot assembly left Complainant worse off because Complainant was left not only without the part that Respondent had determined was defective, but also without the two parts that he needed to replace the defective part. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(1) by leaving the job unfinished.[5] Complainant did not present any evidence to establish that Respondent violated A.R.S. § 32-1154(A)(13) (namely, A.R.S. § 32-1124(B)).[6] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend Respondent Coolwater Pool and Spa, L.L.C.’s License No. ROC219998, Class C- until Respondent installs a new pilot assembly, pilot assembly bracket, and pilot tubing in Complainant Carlton Howard’s pool heater. It is further recommended that if on or before the effective date of the Registrar’s final order, Respondent provides satisfactory proof in writing to the Registrar that it has installed in a professional and workmanlike manner a new pilot assembly, pilot assembly bracket, and pilot tubing in Complainant’s pool heater, the Registrar not suspend Respondent’s license but, instead, close the complaint in Case No. 2010-[number redacted]. 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 21, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” The specific statute charged was A.R.S. § 32-1124(B), which requires that licensed contractors include their license number, which “shall be preceded by the acronym ‘ROC,’“on “all written bids submitted by the licensee and . . . on all advertising, loan forms, lending institution forms, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.”

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