ALJDEC decisions subject to certification as final

2011A-439-ROC · Registrar of Contractors · 2011-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through James Huff. The Respondent appeared through its authorized representative, Robert Smith. 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 (No. 167369) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent performed routine maintenance on the Complainants’ furnace on August 20, 2010. 3. There was no dispute that as part of the maintenance procedure, the Respondent represented that it had cleaned the condensate line to the Complainants’ furnace. 4. Credible testimony and evidence established that during a subsequent maintenance procedure on October 22, 2010, the Respondent reported that it had observed moisture damage and recommended that the Complainant’s furnace be replaced. 5. The Complainants then contacted their insurance carrier for the proper correction of the water damage to their residence and contracted with an alternative HVAC contractor for the replacement of the furnace. 6. The Complainants then provided the Respondent with copies of their costs and demanded that the Respondent reimburse them for their expenses in this matter in the total sum of $3,423.43. 7. When the Respondent failed to comply with the Complainants’ demand, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 8. When the parties were unable to resolve their differences, the Complainants filed a request for an administrative hearing. 9. Credible testimony and evidence established that the condensate line for the Complainants’ furnace had not been cleaned in August 20, 2010, and that the Respondent’s failure to properly clean the condensate line led to the condensate line blockage which resulted in the water damage to the Complainant’s residence and furnace. 10. There was no dispute that the Complainants’ insurance deductible for the repairs of the water damage caused by the blocked condensate line was $500.00. 11. Credible testimony and evidence established that the Complainants fully paid the $500.00 insurance deductible. 12. Credible testimony and evidence established that the Complainants were required to replace their furnace at a cost of $2,923.43 as a result of the blocked condensate line. 13. Credible testimony and evidence established that the cost of $2,923.43 for the replacement of the Complainants’ furnace was reasonable and justified. 14. The Complainants actions, in causing the water damage to their residence to be properly corrected and in replacing their furnace at a cost of $2,923.43, are found to be reasonable and justified under the circumstances. 15. No further corrective work to the Complainants’ residence was shown to be required. 16. Credible testimony and evidence established that the Respondent falsely represented that it had properly cleaned the Complainants’ condensate line when in fact the Respondent did not clean the Complainants’ condensate line. 17. Credible testimony and evidence established that the Respondent failed to perform its work in a professional and workmanlike manner. 18. Credible testimony and evidence established that as a direct result of the Respondent’s failure, the condensate line clogged resulting in extensive water damage to the Complainants’ residence and furnace. 19. Credible testimony and evidence established that the Respondent is fully responsible for the errors and omissions of its employees and that the Respondent is fully responsible for the cost of the Complainants’ insurance deductible and the cost of the furnace replacement in the Complainants’ residence. 20. Credible testimony established that the Respondent failed to properly display its license number in conformance with the provision of A.R.S. § 32-1124 (B). 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 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. A.R.S. § 32-1124 (B) provides, in pertinent part, as follows: The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. 5. The credible evidence of record established violations by the Respondent of the charged provisions of A.R.S. § 32-1124 (B) (display of license) and 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). 6. 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 that, commencing on the effective date of the Registrar’s Order, 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 $3,423.43 ($500.00 for the Complainants’ insurance deductible and $2,923.43 for the Complainants’ cost of replacing their damaged furnace) and the Registrar of Contractors receives and accepts written proof that the Respondent is in full compliance with the terms of A.R.S. § 32-1124 (B) (display of license). It is further recommended that if the Respondent properly accomplishes the above described actions, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall 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, August 25, 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