ALJDEC

97F-H0238-ROC · Registrar of Contractors · 1998-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 1998 in Kingman, Arizona.

APPEARANCES: Mr. Kenneth Euell appeared for Complainants. Mr. Carl Leiker, qualifying party for Samons Air Conditioning, Inc., appeared for Respondent.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn. _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. At the outset of the hearing, it was agreed that the Citation and case caption in this matter should be amended to reflect the correct spelling of the Complainants’ last name to be Euell and not Evell. 2. Don M. Lander, as general contractor, constructed the residence at 3823 Snavely Avenue, which was being purchased by Complainants. 3. In May 1997, Complainants filed their complaint at the Registrar with regard to six items they alleged to be in need of correction by Respondent. 4. Respondent replied to the complaint by notifying the Registrar that Respondent had not installed the system in Complainants’ home. Respondent indicated that it had done some courtesy work for the general contractor with regard to that previously installed system and in response to corrective work which had been ordered to be done by the general contractor in another numbered matter. 5. In reply, Complainants requested that the matter not be closed. 6. In July 1997, the Registrar issued it Citation and Complaint against Respondent alleging possible violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7 and 32-1154.A.3 specifically Arizona Administrative Code (A.A.C.) R4-9-108. 7. When no Answer was received from Respondent, Registrar issued a Decision and Order in this matter. However, the matter was set for granted rehearing after Respondent’s Petition for Rehearing. The matter was subsequently set for hearing in the normal course of hearings in the Kingman area. 8. Although not serving as the original heating and cooling subcontractor on this home, which was built by Lander and eventually sold to Complainant, Respondent subsequently purchased the assets of the original mechanical subcontractor. That acquisition by Respondent was shown not to have included the assumption of any liabilities or responsibilities. Therefore, Respondent did not, by virtue of that asset purchase, fall heir to any obligations of the original subcontractor with respect to the design and balancing of the heating and cooling system in Complainants’ home, its ductwork or its selected equipment. 9. Respondent did agree, as a courtesy to the general contractor, to attempt to address problems in Complainants’ residence, primarily relating to the location of the filter and return, popping noises, and the capability of the installed system and equipment to evenly cool and heat the premises. 10. It is found and determined that, under the facts and circumstances revealed by the evidence and testimony presented at the hearing, Respondent was not and is not responsible for any alleged sizing or design deficiencies in the heating and cooling system and duct work originally installed in Complainants’ residence nor for the results of any of its gratuitous efforts to improve or to equally distribute the air flow within the home, even with respect to any duty to balance the system at this time. The sole responsibilities of Respondent would relate to its work on the relocation of the return filter and its installation of a brace for the duct to prevent the popping noises. 11. The evidence failed to adequately demonstrate that subsequent repair work by Respondent on behalf of Lander to brace the ductwork, to relocate the filter or to correct the original mechanical subcontractor's grill installation was improper or substandard. A degree of difficulty in changing filters and or the size or type of acceptable filter was not shown to otherwise render the installation work deficient nor to mandate any further remedial action. APPLICABLE LAW A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. [Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW Complainants did not sustain their burden of proving by a preponderance of relevant, substantial and probative evidence that Respondent Samons has violated any of the provisions of the State’s contracting laws, as charged in the Registrar’s Citation. RECOMMENDED ORDER In view of the foregoing, it is recommended that the entire Citation and Complaint in this matter, Registrar’s Case No. H97-0238 be dismissed. RECOMMENDED this day, March 19, 1998.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of March, 1998 to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827