ALJDEC decisions subject to certification as final

2010A-3862880-ROC · Registrar of Contractors · 2011-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2011, at 1:00 p.m. APPEARANCES: The Complainants appeared through Richard Finkbeiner. The Respondent appeared through its authorized representative, Patrick Martonrana. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-39 (No. 152609) License issued by the Registrar of Contractors. 2. There was no dispute that on July 6, 2009, the Complainants were experiencing problems with the two air conditioning units on their residence. 3. Credible testimony and evidence established that the Complainants contacted the Respondent and that the Respondent then examined the air conditioning units and observed that the units were low on Freon. 4. The Respondent then advised the Complainants that the air conditioning units were old and in need of replacement but that the Respondent was willing to charge the air conditioning units and that the charged air conditioning units might last the Complainants through the summer. 5. Credible testimony and evidence established that the Complainants elected to have the air conditioning charged rather than replaced. 6. The Respondent then added Freon to the air conditioning units and charged the Complainants $700.00 for its work on the air conditioning units. 7. There was no dispute that the Respondent did offer to give the Complainants a credit of $350.00 towards to the replacement of the air conditioning units if the recharged air conditioning units failed to operate through the summer. 8. Credible testimony and evidence established that the recharging of the Complainants’ air conditioning units with additional Freon failed to make in demonstrable difference in the operation of the air conditioning units. 9. Credible testimony and evidence established that the Complainants then requested that the Respondent return to their residence and try make the air conditioning units operational. 10. When the Respondent failed to return to their residence the Complainants contacted an alternative HVAC contractor to inspect their air conditioning units. 11. Credible testimony and evidence established found that the alternative contractor discovered a Freon leak in the valve stem for the air conditioning units. 12. The alternative contractor then corrected the leak in the valve stem and that the Complainants’ air conditioning units then functioned through the summer of 2009. 13. There was no dispute that the alternative HVAC contractor did not charge the Complainants for repairing the leak in the air conditioning units. 14. Credible testimony and evidence established that the Complainants have now replaced the air conditioning units on their residence and that no additional corrective action is required in this matter. 15. The Complainants were dissatisfied with the Respondent’s failure to discover the leak in their air conditioning units and with its failure to return to their residence and correct its workmanship on their air conditioning units and demanded the return of the $700.00 that they had paid the Respondent for adding new Freon to their air conditioning units.

16. When the Respondent refused to return their money the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 17. There was no onsite inspection conducted because the leak in the air conditioning system had already been corrected by an alternative contractor 18. Credible testimony and evidence, presented at hearing, established that the Respondent failed to properly inspect the Complainants’ then existing air conditioning units for leaks before adding new Freon to the air condition units. 19. Credible testimony and evidence established that the Respondent’s failure to inspect for leaks before adding new Freon to the Complainants’ then existing air conditioning units failed to comply with applicable workmanship and industry standards. 20. Credible testimony and evidence established that the Complainants received nothing of value for the $700.00 that the Complainants paid the Respondent in this matter. 21. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have 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 establish 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). 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 paid restitution to the Complainants in the sum of $700.00. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, 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 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