ALJDEC decisions subject to certification as final

2011A-3411-ROC-com · Registrar of Contractors · 2012-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 1, 2012

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Michael Thal, Esq., accompanied by Managing Member Leland Honeyman.

WITNESSES: Jeff Fleetham, ROC Inspector George Cebry

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This matter was set as a compliance hearing to determine whether Respondent has complied with an Order issued by the Registrar of Contractors (“Registrar” or “ROC”). The Order required Respondent to perform corrective work as described in an Administrative Law Judge Decision adopted by the Registrar. Respondent alleges that it has complied with the Order; Complainant denies it. This tribunal entered the full complaint file received from the Registrar into the record, which includes documentation relating to the underlying complaint and relating to the question of compliance with the Order. The parties presented testimony at the compliance hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding Respondent to be in compliance. FINDINGS OF FACT 1. On January 13, 2012, the Registrar issued an Order adopting an Administrative Law Judge Decision dated December 12, 2011. The Order gave Respondent until February 22, 2012, to perform corrective work or have its license suspended until Respondent shows that it is in compliance. In addition, the Order requires that Respondent serve probation for 60 days once compliance has been established. 2. On February 13, 2012, Respondent filed a written statement with the Registrar stating that compliance had been achieved and requesting an inspection to verify compliance. Complainant responded by denying that Respondent was in compliance. The Registrar then issued an order setting the matter for compliance hearing. The Registrar’s Order Setting Compliance Hearing states that the hearing is to determine “whether or not Respondent has failed to comply with the Registrar’s directives, absent unreasonable interference by Complainants [sic].”[1] 3. As noted, Respondent was ordered to perform corrective work as provided in the adopted Administrative Law Judge Decision. Specifically, Respondent was ordered to take whatever corrective action was necessary in order to ensure that the air conditioner installed by Respondent at Complainant’s home meets minimum “workmanship standards for cooling.”[2] 4. ROC Inspector Jeff Fleetham testified that workmanship standards call for air conditioning to cool a structure 30 degrees lower than the outside temperature to a lowest temperature of 78 degrees, when measured in the center of a room at 5 feet height.[3] Inspector Fleetham also testified that he took measurements in Complainant’s home at a compliance inspection on October 31, 2012. He found that the air conditioner was achieving the minimum standards. 5. Complainant did not challenge the Inspector’s readings or testimony. Instead, Complainant argued that the air conditioner does not work well in the summer months, and presented Exhibit A, a document he prepared that shows measurements that were taken in his home on August 12, 2012. Complainant testified that his wife took the temperatures in each room with “a thermometer that we have at home, it’s not calibrated or anything. . . .”[4] He did not know the make and model of the thermometer that was used, but described it as a tabletop thermometer with a digital readout. 6. Respondent objected to Exhibit A. The Administrative Law Judge ruled that Exhibit A could not be given much weight due to the absence at hearing of the person who performed the task, due to the lack of information about the reliability of the thermometer used, and due to lack of reliability of the process used and the lack of an independent person taking the readings. In addition, Exhibit A was not disclosed until the hearing date, even though the readings had been taken in August 2012. 7. The greater weight of the evidence supports Inspector Fleetham’s findings that Respondent has achieved compliance with minimum workmanship standards for cooling. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon the party asserting a claim, right, or entitlement.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] Since the Order required Respondent to show compliance, Respondent bears the burden of showing, by a preponderance of evidence, that it has complied with the Order.[7] Respondent has met that burden. 2. The evidence shows that Respondent has corrected the air conditioner at Complainant’s home so that it meets minimum workmanship standards for cooling. RECOMMENDED ORDER IT IS RECOMMENDED that Honeyman A C LLC, holder of License No: C39R.235072-R, be found to be in compliance with the corrective work ordered in the Registrar’s January 13, 2012 Order.

In the event of certification of the 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 that certification.

Done this day, November 20, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Order Setting Compliance Hearing also states that if Respondent is found to be in compliance “then this matter shall be closed and no discipline imposed . . . .” Given the lingering probationary period that must be served upon compliance, this statement must be viewed as a mistake. [2] Administrative Law Judge Decision at 4. [3] Workmanship Standards for Licensed Contractors (February 2009), published by the Arizona Registrar of Contractors. [4] 11/01/12 Hearing Record at 29:17-29:25. [5] Arizona Administrative Code (A.A.C.) R2-19-119(B). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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