ALJDEC decisions subject to certification as final

2010A-308476589-ROC · Registrar of Contractors · 2011-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Gabriel Gauriilidis. The Respondent appeared through its authorized representative, Russ Blaha. 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. 200498) License issued by the Registrar of Contractors. 2. The Respondent installed a large water source heat pump system in a commercial project identified as “City North” as a subcontractor for the Complainant which was operating in its capacity of a general commercial contractor. 3. Credible testimony and evidence established that the Respondent completed the construction of the water source heat pump system in March, 2010. 4. There was no dispute that the Respondent’s construction work on the water source heat pump system passed inspection by the local building authority and that the Complainant paid the Respondent in full for its completed construction work. 5. In June, 2010, the owner of the commercial property experienced the first of several water leakage problems in the commercial project at issue. 6. Credible testimony and evidence established that the owner of the commercial property would notify the Complainant of the leakage problem and that the Complainant would then notify the Respondent of the leakage problem. 7. Credible testimony and evidence established that the Respondent would then respond and perform corrective work on the problem at issue. 8. There was no dispute that the Premier Air Conditioning and Heating had recommended that it be allowed to perform a pressure test on the completed water source heat pump system at City North. 9. Credible testimony and evidence established that the Respondent was ready and willing to perform the suggested pressure testing and to perform any corrective action that the pressure testing might indicate as being necessary. 10. Credible testimony and evidence established that the owner of City North then informed the Complainant that the owner would no longer allow the Respondent on the property at issue and that the owner wanted an alternative contractor to perform a pressure test and any required corrective action on the heat pump system. 11. The owner of the property then retained an alternative licensed contractor to perform a pressure test on the system. 12. There was no dispute that the alternative contractor performed a pressure test and performed construction work on the water source heat pump system that the Respondent had installed at City North. 13. The owner of the commercial property at issue then charged the Complainant for the costs of having an alternative contractor perform pressure testing and construction work on the water source heat pump system at City North. 14. The Complainant then filed a formal Complaint against the Respondent with the Registrar of Contractors seeking restitution for the cost of having an alternative contractor perform pressure testing and corrective work on the water source heat pump system and appropriate disciplinary action against the Respondent’s License. 15. Undisputed credible testimony and evidence established that the Respondent’s construction work on the water source heat pump system at City North had been modified by an alternative contractor prior to the filing of the complaint at issue. 16. The credible testimony and evidence of record is insufficient and fails to support a finding as to whether the problems that the Complainant has continued to experience with water source heat pump system installed in City North were caused by the Respondent or by the alternative contractor that has also performed construction work on the water source heat pump system at City North. 17. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship on the installation of the water source heat pump system at City North failed to comply with applicable workmanship and industry standards. CONCLUSIONS OF LAW 1. A.R.S. § 32-1155 provides as follows: C. The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use. 2. 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). 3. 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). 4. 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). 5. The Complainant failed to sustain its burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. 6. The credible testimony and evidence of record did not sufficiently sustain a finding of a violation by the Respondent of the 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) 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, May 10, 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