ALJDEC decisions subject to certification as final

2010A-308477128-ROC · Registrar of Contractors · 2011-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Anthony Ramos. 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 (219192) License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainant contacted the Respondent and informed the Respondent that the Complainant’s air conditioning system had stopped working and requested the Respondent to perform an onsite inspection of the air conditioning system. 3. There was no dispute that on June 16, 2010, the Respondent inspected the Complainant’s air conditioning system. 4. Credible testimony and evidence established that the Respondent informed the Complainant that the Complainant’s air conditioning system was apparently more than ten (10) years old and suggested that the air conditioning system be repaired rather than corrected. 5. There was no dispute that the Complainant elected to have his existing air conditioning system repaired and serviced instead of replacing the entire system. 6. The Respondent then performed service and repair work on the Complainant’s air conditioning system and gave the Complainant an invoice for the completed repair and service work. 7. Credible testimony and evidence established that the Respondent provided a warranty for its labor and materials for the completed repair and service work. 8. Credible testimony and evidence established that the Respondent corrected the leak in the air conditioning system and then charged and added “super seal” to the system to prevent further leaking. 9. Credible testimony and evidence established that the Complainant expressed his dissatisfaction with the amount of money that the Respondent charged for its service work but paid the Respondent in full for the completed service work. 10. Despite the Complainant’s dissatisfaction there was no dispute that the Complainant fully paid the Respondent the sum of $904.39 for the completed service work. 11. Credible testimony and evidence established that the air conditioning system failed within a few days of the completion of the Respondent’s service and repair work on the air conditioning system. 12. Credible testimony and evidence established that the Respondent then returned and performed additional repair work on the Complainant’s air conditioning system utilizing and epoxy material. 13. Credible testimony and evidence established that the epoxy application failed to resolve the leaking problems with the Complainant’s air conditioning system. 14. Credible testimony and evidence established that the Complainant then repeatedly attempted to contact the Respondent and notify the Respondent of the problems with the air conditioning system and that the Complainant repeatedly attempted to request that the Respondent return to his residence and properly correct the Complainant’s air conditioning system. 15. When the Respondent failed to respond to the Complainant’s repeated requests for addition corrective work on the Complainant’s air conditioning system the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 16. There was no onsite inspection because the Complainant had checked on the complaint form that the work had been repaired or completed by a new contractor. 17. Credible testimony presented at hearing established that Complainant’s air conditioning system has not been repaired or completed by a new contractor and that the Complainant is still without air conditioning. 18. Credible testimony and evidence established that the Respondent’s repair and service work on the Complainant’s air conditioning system failed to comply with applicable industry and workmanship standards. 19. Credible testimony and evidence established that the Complainant received nothing of value for the money that the Complainant paid the Respondent in this matter. 20. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, this contractor should not be allowed to wreak any further havoc on the life of this homeowner. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent either cause a properly licensed contractor of the Complainant’s choice to properly correct the problems with the Complainant’s air conditioning system or, as restitution, repay the Complainant the $904.39 that the Complainant paid to the Respondent for the substandard service and repair work in this matter. 21. 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 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. Credible testimony and evidence supported findings which established violations by the Respondent of 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). 5. A.R.S. § 32-1156.01 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee. 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 suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has either caused a properly licensed contractor of the Complainant’s choice to correct the Complainant’s air conditioning system or has paid the sum of $904.39 to the Complainant as restitution for that the money that Complainant paid the Respondent in this matter. It is further recommended that if the Respondent provides acceptable written proof to the Registrar that the Respondent has either, utilizing a properly licensed contractor of the Complainant’s choice, caused the Complainant’s air conditioning system to be fully corrected or has paid the Complainant the sum of $904.39 as restitution for the money that the Complainant paid the Respondent in this matter, on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter be closed. 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, July 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