ALJDEC decisions subject to certification as final

2010A-308477034-ROC · Registrar of Contractors · 2011-05-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 4, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Denise Troy. 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 B (No. 079383) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant purchased a new residence constructed by the Respondent. 3. Credible testimony and evidence established that the Complainant began his occupancy of the new residence on May 30, 2008. 4. The Complainant was very disappointed with his high electrical bills during the summer months and became dissatisfied with the operation of the air conditioning system in his new residence and repeatedly complained to the Respondent. 5. Credible testimony and evidence established that the Respondent attempted to resolve the Complainant’s dissatisfaction with the air conditioning system in his new residence but was unable to resolve the alleged problems with the operation of the air conditioning system to the Complainant’s satisfaction 6. On November 9, 2010, 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 a review of the matter. 8. On November 10, 2010, the assigned Agency Inspector issued a letter indicating that the Registrar of Contractors must decline to take action in this matter based upon the fact that the complained of act was committed more than two years prior to the date of the filing of the complaint at issue and moved to close the complaint. 9. The Complainant provided additional information and the assigned Agency Inspector conducted an onsite inspection of the Complainant’s residence. 10. On December 6, 2010, the Registrar of Contractors issued a second letter which provides, in pertinent part, as follows: This is a case to first determine whether or not it falls within our 2 year jurisdiction. Both parties agree that the indoor coil of the a/c unit was replaced approximately 1 year and 5 months after COE date. The underlying problem with the complainant is that the a/c units never worked properly due to excessively high electric bills. In this agency’s opinion, it might not have been just the coil that contributed to the problem, so this complaint does fall within our 2 year jurisdiction. Subsequent discovery by another contractor approximately 1 year later is that the complainant should have 5 ton units in lieu of the 4 tons that he currently has.

Both parties provided engineered calcs. that contradict each other.

This inspector does not have the qualifications to determine which calcs. are correct so, cannot make a determination if the contractor is obligated or not.

11. The Complainant then requested an administrative hearing. 12. The assigned Agency Inspector testified that he was unable to test the Complainant’s air conditioning system during the onsite inspection and that he did not have the qualifications to make a determination as to whether the Complainant’s residence required two 4 ton A/C units or two 5 ton A/C units. 13. At the hearing, the Complainant testified that the electric bills for this 4200 square foot residence were much higher than expected and that during the summer months the air conditioning system in his residence was unable to properly cool his residence. 14. The Complainant also provided calculations from an alternative licensed HVAC contractor that had inspected his residence and opined that the Complainant’s residence required two 5 ton A/C units to adequately cool the Complainant’s 4200 square foot residence and that the two 4 ton A/C units that were actually installed in the Complainant’s residence were inadequate. 15. The licensed HVAC contractor that installed the two 4 ton A/C units in the Complainant’s residence presented testimony and provided calculations that the two 4 ton A/C units were appropriately sized for the Complainant’s 4200 square foot residence. 16. Credible testimony and evidence established that the calculations for the use of the two 4 ton A/C units for the Complainant’s 4200 square foot home were reviewed and approved by the local building authority. 17. Credible testimony and evidence established that the installation of the two 4 ton A/C units was inspected and approved by the local building authority. 18. The credible testimony and evidence of record is insufficient and fails to support a finding that the two 4 ton A/C units are inadequately sized for the Complainant’s residence. 19. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent departed from or disregarded plans or specifications or any building codes. 20. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent failed to perform its construction work on the Complainant’s residence 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 credible testimony and evidence of record did not sufficiently sustain a finding of violations by the Respondent of the provisions of A.R.S. § 32-1154 (A), 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 19, 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