ALJDEC decisions subject to certification as final

2010A-308476202-ROC · Registrar of Contractors · 2011-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 21, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. 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-79 (No. 159168) License issued by the Registrar of Contractors. 2. There was no dispute that the Respondent performed HVAC work on the Complainant’s rental property located at 1009 W. Sandra Terrace, Phoenix, Arizona. 3. Credible testimony and evidence established that the Complainant contacted the Respondent on September 17, 2010, and stated that the tenants of the rental property were experiencing a problem with water leaking into the rental residence from the air conditioning unit in the residence. 4. Credible testimony and evidence established that the Respondent performed an inspection of the air conditioning unit in the rental property and found that the condensate line for the air conditioning unit was plugged causing moisture from the condensate line to overflow the water pan under the condensate line. 5. Credible testimony and evidence established that the Respondent repaired the condensate line in a professional and workmanlike manner and vacuumed the excess water from the water pan and then left the rental residence. 6. The tenants of the rental property and the Complainant then noticed a “water bubble” forming on the ceiling of the residence under the area where the Respondent had performed its work. 7. Credible testimony and evidence established that the Respondent then returned to the rental residence and offered to puncture the “water bubble” that had formed in the ceiling and remove the excess water. 8. There was no dispute that the Complainant declined the Respondent’s offer to remove the water from the “water bubble.” 9. There was no dispute that there is water damage in the attic area of the Complainant’s rental residence. 10. The Complainant then complained to the Respondent and asserted that the water damage to the ceiling and the surrounding attic area was caused by the Respondent’s failure to take proper precautions against water damage when the Respondent removed the excess water from the water pan. 11. The Respondent then conducted an additional onsite inspection of the damaged area in the ceiling and observed that there had been prior water problems around the water pan as evidenced by observable mold on the upper side of the ceiling and surrounding attic area. 12. When the Respondent declined to accept responsibility for the water damages in the ceiling area of the rental unit, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 13. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on October 28, 2010, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 14. There was no dispute that the Respondent failed to attend the scheduled onsite inspection. 15. Credible testimony and evidence established that the Respondent submitted photographs and additional evidence to the assigned Agency Inspector after the completion of the onsite inspection and the issuance of the Corrective Work Order. 16. On November 23, 2010, the assigned Agency Inspector issued a letter rescinding the Corrective Work Order and moved to close the complaint. 17. The November 23, 2010, letter provides, in pertinent part, as follows:

After a jobsite inspection, a Corrective Work Order was issued on October 28, 2010. Since that date, further review of the information by the Inspector indicates that the pan may have been leaking prior to the call for service as a leaking pan was the reason for the service. As a result, the Inspector is no longer able to determine if the damage was due to the actions of the Respondent in this matter and directing corrective action would be inappropriate. The Corrective Work Order issued on October 28, 2010, is hereby rescinded and no action is required of the contractor. 18. The Complainant then requested an administrative hearing. 19. Credible testimony and evidence, presented at hearing, established that the water pan in Complainant’s rental residence is extremely rusty and that the surrounding area in the attic of the rental residence shows evidence of water damage and mold from prior occasions where water has overflowed from the water pan to the ceiling and attic area of the residence. 20. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the water damage to the ceiling and attic area of the Complainant’s rental residence. 21. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its work in a professional and workmanlike manner. 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). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. §32-1154 (A) (3), namely, A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner) as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, April 28, 2011.

/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