ALJDEC decisions subject to certification as final

2010A-751418-ROC · Registrar of Contractors · 2010-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Courtney Brown. 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 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed an evaporative cooler on the Complainant’s residence on June 26, 2009. 3. Credible testimony and evidence established that after the evaporative cooler was installed the Complainant asserted that there was some type of noise in the attic area of the residence and requested the Respondent to locate the source of the noise. 4. The Respondent located the source of noise and informed the Complainant that the noise was coming from the A/C condensate pump and that the noise was normal and indicated that the pump was pumping water out of the condensate line. 5. The Complainant then notified the Respondent of an air flow problem and on July 7, 2009 the Respondent installed a back draft damper system. 6. Credible testimony and evidence established that on July 16, 2009 the Complainant again heard a noise in the attic area of his residence and that he personally entered the attic area and attempted to correct the noise. 7. On July 18, 2009 the Complainant notified the Respondent that there was water leaking form the attic area. The Respondent then re-examined the attic area and was unable to locate the source of the water leak. The Respondent then advised the Complainant to have a plumber inspect the residence and locate the source of the water leakage problem. 8. On July 20, 2009 a plumber located the source of the water leak and informed the Complainant that the A/C condensate line was leaking where a joint had never been glued. 9. The Complainant then contacted the Respondent and informed the Respondent of the plumber’s finding and demanded that the Respondent turn the matter over to Respondent’s insurance company for repairs to the Complainant’s residence. 10. When the Respondent refused to accept any responsibility for the water damage the Complainant contacted his own insurance company and caused the water damage in his home to be corrected and again contacted the Respondent and demanded that the Respondent pay for the damages caused by the leaking condensate line. 11. When the Respondent refused to pay for the water damage to the Complainant’s residence the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 12. There was no onsite inspection because the damage had already been corrected by alternative contractors. 13. Credible testimony and evidence established that the joint in the condensate line had never been properly glued and that the condensate line had been leaking long enough to stain the plastic piping prior to the complete separation of the unglued plastic pipe joint. 14. The credible evidence of record is insufficient and fails to support a finding that the Respondent caused the unglued joint in the Complainant’s condensate line to completely separate. 15. The credible evidence of record is insufficient and fails to support a finding that the Respondent’s workmanship in the installation of the evaporative cooler and back draft damper system in the Complainant’s residence failed to comply with applicable workmanship and industry standards. 16. Credible testimony and evidence established that the Respondent did not install the condensate line and is not responsible for the fact that it was improperly installed. 17. The credible evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the water damage caused by the leaking condensate joint.

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. 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 evidence of record did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. §32-1154A.

RECOMMENDed order

In view of the foregoing, it is recommended that this matter shall 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, June 30, 2010.

/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