ALJDEC

98F-2361-ROC · Registrar of Contractors · 1999-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by his attorney, Aaron Kizer. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant purchased new home construction from Respondent. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. Although the number of items contained in the original complaint were quite extensive, Complainant averred at the outset of the instant hearing that the only unresolved items of his complaint involved the roof, the air-duct system, the operation of the heat pump, the septic system location, and the issue of re-vegetation. 3. In regard to the roof issue, it was undisputed that Respondent had recently completed further repairs in the area at issue and Complainant averred that he was unable to state that the recent repairs were unsuccessful in resolving said roof issue. Accordingly, Complainant withdrew the roofing issue from consideration at the instant hearing. Nevertheless, the parties are on notice that any failure of these recent roof repairs would serve as a basis to allow Complainant to file a future complaint, regarding roof related issues, with the Registrar of Contractors within two years from the date said roof remedial work was completed. 4. It is important to note that Complainant’s home was approximately 90% complete at the time Complainant first observed the home and elected to purchase same. Complainant claims entitlement to a heating/air conditioning duct opening in his den. Currently, the area is cooled/heated from a duct opening located in the adjacent room. 5. The Registrar of Contractors assigned an inspector to examine the items remaining on the instant complaint and in this regard, the inspector viewed the above-described location of the heating/cooling venting for the den. The inspector testified at the hearing that although the design was not perfect, heating and cooling for the den would be adequately provided by the location of the duct vent in the adjacent room. 6. It is important to note that Complainant not only had an opportunity to view the vent location described in the foregoing findings prior to purchasing the home but moreover, he requested that a set of double doors should be installed between the two rooms in question. In this regard, Respondent agreed to install the door but specifically provided in the applicable addendum to the purchase contract that there would need to be a 29 inch opening above the door frame to the ceiling. The reason for the 29 inch opening was clearly to insure that the heating/cooling vent, which is located high on the wall in the adjacent room, would still be able to force air-conditioned/heated air into the den with the doors closed. Thus, Complainant had adequate notice of this particular design in the heating/air-conditioning system for his home and the evidence of record is found to be inadequate to support any finding of a contracting law violation in this regard. 7. Complainant took occupancy of his home on or about April 10, 1997. On August 12, 1999, he incurred a major service repair bill on his heat pump system and contends that Respondent should be responsible for said billing. The bill in question basically involved the installation of a new four ton heat pump indoor coil in the attic of the home and a specified dryer filter by the condensing unit. Respondent contends that this claim should be barred by the applicable statute of limitation. 8. It was undisputed that Complainant had lodged numerous complaints with Respondent regarding the operation of his heat pump over the course of the almost two and one half years that he has lived in the home. Although the original subcontractor made numerous visits to the home to check the operation of the system, it never performed any repair work on the indoor coil or the dryer filter described in the foregoing finding. 9. It is important to note that the service manager for the original air-conditioning subcontractor appeared at the hearing and indicated that although his company may have added freon and withdrawn freon on a couple of occasions, that when he last checked the system in the early part of 1998, he found everything to be operating properly within the manufacturer’s guidelines. Furthermore, it was shown that Respondent, in response to Complainant’s continuing complaints about the system and Complainant’s expressed lack of faith in the original subcontractor, sent another licensed air-conditioning subcontractor out to Complainant’s home to conduct a further inspection of the system, subsequent to the last date that the original subcontractor had inspected the home. 10. The aforementioned subsequent air-conditioning subcontractor appeared at Complainant’s home on March 17, 1998. Evidence of record showed that this subcontractor made some minor adjustments to the system, including removing some of the freon due to a finding that the system was still over-charged. Upon completion of its inspection and adjustments this subsequent air-conditioning subcontractor ultimately concluded that the system was operating “normally.” The report from this subcontractor also indicated that the indoor coil was checked and found to be operating “normally at this time.” 11. A.R.S. § 32-1155A provides for the “filing of a written complaint with the Registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license.” The law interpreting this statute of limitation has long held that a complaint must be filed with the Registrar within two years from the date of occupancy or discovery of the defect, whichever occurs first. Complainant’s August 1999 repair to his heat pump system is found to be well beyond the two year statute of limitation and therefore, his complaint in this regard should be dismissed. 12. Complainant contends that the septic tank system was placed in a location on his property that is in violation of applicable building codes and requirements for septic tank installations. However, evidence of record demonstrated that the local building authority inspected the system after it was placed in the ground, prior to it being buried, and issued an approval for same. Although Complainant is concerned that some governmental authority may file a future complaint against the location of the septic system, as of this date no such action has occurred. The weight of the evidence of record was sufficient to support a finding that the location of the septic system was proper, in accordance with all governmental and building authority requirements. 13. Complainant contends that Respondent failed to comply with certain requirements to accomplish specified re-vegetation on the property subsequent to completion of the septic installation. The assigned Agency inspector testified that he viewed the area just prior to the instant hearing and he observed adequate vegetation in said area. Moreover, the contractor who performed the work testified that re-vegetation procedures were performed. Although Complainant may have preferred to see greater vegetation in said area, he was unable to sustain the requisite burden of proof necessary to establish that Respondent failed to comply with any requirements to re-vegetate the area over the septic system.

CONCLUSIONS OF LAW

1. 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). 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). It “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). 2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, August 26, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of August, 1999, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826