ALJDEC

99F-0158-ROC-RHG · Registrar of Contractors · 2000-03-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 2000. APPEARANCES: Nino Abate, Respondent’s attorney; Paul Norman, Respondent’s owner; and Dick North, Registrar of Contractors Inspector. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Complainants have not established that the Respondent’s work done in response to the Corrective Work Order was not performed to minimum workmanship standards.[1] Therefore, I recommend that this appeal be dismissed with no disciplinary action taken against Respondent. FINDINGS OF FACT 1. Complainants, Danny Askren and Nikki Hopper, purchased an extremely old house with an agreement to do “sweat equity” for a down payment. The purchase contract stated that Complainants were to take the home’s evaporative cooler off the roof (for roof replacement or repairs), then put the cooler’s stand back on and replace the cooler to its original position. But Complainants put the cooler on the ground and did not replace it. Apparently it became damaged in this process. The mortgage company would not approve the loan without a working cooler. In order to help Askren close on his house, Jim Harsted, a real estate agent in the sale, asked Oscar O’Donnell of Oscar’s Air Conditioning and Heating to install a used 4500 CFM down draft cooler which O’Donnell had located for him at a very reasonable price. Mr. O’Donnell charged Askren $250 for the installation on April 28, 1998. Mr. O’Donnell also certified the home’s heating and cooling as being “in operating condition. The furnace is old, but is still in working condition”. The certification was made on April 30, 1998. 2. Mr. O’Donnell is not a licensed contractor and was not doing jobs for over $750. He did, however, mention to Askren and/or Hopper that his “father” was Paul Norman, a licensed contractor. Paul Norman in fact considers himself to be a father to O’Donnell because he raised him. He did not adopt him though, and they are not actually related by law or blood. They live in the same home but do not work together or represent to the public that they work together. 3. On July 15, 1998, Askren filed a complaint with the Registrar of Contractors stating that he had contracted for the work through his real estate agent, Jim Harsted, and that the cooler did not cool the house and was too small and that the heater did not have a proper outlet. He complained that “he”, referring to Paul Norman, the Respondent’s owner, certified the heating and cooling. Askren admitted that “he” did this so that Complainants could close on the home. In fact, it was O’Donnell who had certified the heating and cooling and Norman did no work on the home at all until after a Decision and Order was entered by the Registrar of Contractors. Askren filed another complaint (which must be considered an amended complaint as it arose from the same job) on August 3, 1998 stating that the heater outlet was taken care of but the cooler was not cooling the house. A Registrar of Contractors Inspector viewed the site after the first complaint and recommended that a cookie sheet be inserted by the cooler to prevent some air from escaping but told Askren that the house would not be cool until they insulated it. Askren, at that point, began yelling at the inspector and then began swearing and pushing him. Norman agreed to install the cookie sheet right away and Askren agreed to wait while Norman went to the store to get it and return. When Norman returned within a half hour, however, Askren was gone. Norman returned the next day to install the cookie sheet, but Askren would not admit him to the home. Subsequent inspections arising out of several amended complaints resulted in fights between Askren and the inspectors as well. Norman was also kicked off the property during at least one of these fights. The last complaint filed was on February 9, 1999 wherein Askren wanted Norman to fix the furnace because O’Donnell had certified it. 4. The Registrar of Contractors issued a Citation and Complaint in the matter and, because it received no response from Norman, issued a Decision and Order suspending his license until the work had been corrected. (The Corrective Work Order had stated simply that the evaporative cooler was not working properly, to be corrected by the appropriate means.) On November 3, 1998, Norman submitted a letter stating that he had been out of town when the earlier mail was delivered and did not have an opportunity to respond. He stated that he did not do the work and did not receive any money for it. In a separate letter he stated that he had gone to the house to try to help address the complaint but did no work on it as he was not the contractor on it and his license number was not used in the transaction. He further stated that the house had no insulation and improperly installed duct work, which could be the problem. The Registrar of Contractors declined to reopen the case. 5. Norman submitted a request for a compliance inspection on December 2, 1998. The subsequent inspection concluded that the contractor had not complied with the corrective work order. The inspector found, however, that the size of the cooler was adequate and that the duct work was problematic. He noted problems with the installation of the cooler as well. This had not been addressed because Norman had not been allowed access to the property, a fact which Complainants denied. 6. On January 7, 1999, Jim Harsted, the real estate agent, signed a letter “to whom it may concern” stating that he had hired Oscar O’Donnell, NOT Paul Norman, to install a used cooler. The letter also confirmed that Askren had not cooperated in allowing Norman on the property during a Registrar of Contractors inspection he’d attended. He also stated, “I am not quite sure that I don’t question the motives of the Askrens (sic) everyone involved in this situation went overboard in trying to help them remodel this house even with the problems that were caused by their negligence.” He noted that Askren and Hopper were given a limited amount of funds with which they agreed to affect repairs and only after the closing of the house did they complain that the work was not sufficient, bringing complaints which totaled far beyond the prices which were contracted for. 7. After Askren’s last complaint, in February 1999, Norman offered to install a new furnace and make some specified repairs to the cooler and duct work. In exchange, Askren and Hopper would agree to drop their complaints in West Phoenix Justice Court and at the Registrar of Contractors and would sign a letter of compliance and release Norman of any further responsibility. A contract to this effect was signed by Norman, Askren and Hopper on April 19, 1999. (Exhibit C.) Norman complied with the contract, paying over $2,200 to Ample Air for the work, but Askren and Hopper did not drop any of their complaints. They had, in fact, had a hearing in Justice Court prior to the hearing in this case, a fact noted in Hopper’s request for continuance. (While Askren and Hopper did not appear at hearing, Hopper submitted a request for continuance just prior to the hearing, which was denied.) 8. After Norman completed the work agreed to in the settlement, Askren and Hopper complained that there was no sheet rock behind the furnace to prevent fumes from escaping. This, however, had not been a part of the settlement agreement. Further, Askren and Hopper had been told that they needed to install sheet rock there to prevent fumes. Clearly, they were simply unwilling to accept this responsibility. 9. A compliance inspection by Dick North on April 29, 1999 found that there was a little bit of air escaping from the duct work in the house though he could not detect from where. He also found that the house was not properly insulated and would not be properly cooled until it was. He found Norman not in compliance because of the escaping air. But any repairs needed at this point, he stated, would be minor. 10. While bringing the duct work “up to code” was part of the settlement contract, it was never part of the original contract with O’Donnell, so getting free parts and labor on this unrelated part of their home was a boon to them. Nevertheless, Askren and Hopper did nothing to comply with the settlement contract. Once the work was done, they proceeded with both the West Phoenix Justice Court complaint and the Registrar of Contractors complaints. They must be considered in breach of the settlement, thus nullifying any further obligation on Norman’s part. Further, considering the age of the home, the complexity of the duct work and the fact that the inspectors could not determine the source of air escaping, sealing whatever small leaks remained is de minimus and practically impossible. As Inspector North testified, any remaining repairs would be minor. They would not be necessary for meeting the standard of workmanlike repairs considering the home’s condition. 11. Norman submitted a report from the gas company showing that the gas had been turned on for some weeks prior to the inspection made of the furnace by O’Donnell. This was significant because Complainants had stated in one of their many letters to the Registrar of Contractors that O’Donnell had done the inspection when the gas was not yet turned on. This, and the substantial evidence that Askren had picked fights with the inspectors, excluded Norman from the home when he came to make repairs, and the Complainants’ clear intention to force Norman, who never installed the cooler, to repair the duct work, when the duct work was never part of the initial contract, clearly established that Norman’s testimony was more believable than the assertions of the Complainants throughout the file. 12. Norman’s license has only one other complaint on complaint history record with the Registrar of Contractors other than those of the Complainants. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The only applicable rule in the Arizona Administrative Code in this case refers to workmanship standards. A.A.C. R4-9-108. 5. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 6. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 7. In this case, Respondent has complied with the Corrective Work Order and with the settlement agreement between the parties in a workmanlike manner. No other repairs or corrections are necessary for full compliance. Any conceivable remaining work to be done under the settlement agreement is minimal and is not reasonably possible given the state of the home. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainants have not met their burden of proof here. Therefore, the Registrar of Contractors should dismiss this matter and close the entire Complaint in Case Number 99F-0158- ROC with no discipline taken against Respondent’s license. RECOMMENDED ORDER Danny Askren and Nikki Hopper have failed to show that Paul Norman General Contractors has not complied with its Corrective Work Order or with its settlement agreement. Respondent’s license is not currently under suspension according to the Registrar of Contractors’ computer records nor is there any remaining disciplinary action from the original Decision and Order in this matter. Therefore, I recommend that the Registrar of Contractors take no disciplinary action in this matter and close the entire Complaint in Case Number 99F-0158-ROC. Done this day, March 27, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

----------------------- [1] Danny Askren and Nikki Hopper, Complainants, filed a Complaint against Respondent for work done by another party (with whom Respondent had no legal connection whatsoever). Therefore, this appeal should have been dismissed as naming the wrong party to an action. Unfortunately, Respondent defaulted on the Citation and Complaint. The Registrar of Contractors issued a Decision and Order in that case because Respondent failed to appeal the Citation and Complaint (he had been out of town and had not seen the notice). Even though the matter involves the wrong party and could still be dismissed as naming the wrong party to a suit, no Motion to Set Aside has been filed as of this date. After the Decision and Order, the matter became more complicated due to the many amended complaints filed by Complainants and other actions by them, and Respondent’s attempts to appease them. But if this

appeal is not dismissed on the grounds that Respondent (or anyone legally connected to him or anyone with permission to work under his license) did not do the work in question, the appeal could be dismissed on the grounds that the complaint and the amended complaints embody defects in the Complainants’ home which are far separate from the work contracted for and which are not reasonably addressed by that work. It appears from the weight of the evidence that Complainants coerced Respondent into providing them with a new heating and cooling system for the cost of installing a used cooler (by someone else) using threats to his license and lawsuits. Even if the appeal is not dismissed on these grounds, it could be closed because Complainants disallowed access to the home for corrective work on at least one occasion. If this matter is not dismissed or closed for any of these grounds, it could be dismissed because a settlement agreement between the parties was substantially complied with by Respondent and not honored by Complainants. However, because the matter came before the Office of Administrative Hearings after a Decision and Order had been issued (which has not been set aside) and then some amended complaints had been filed, the Complaint(s) should be closed and no disciplinary action taken because the Respondent complied with the Corrective Work Order in a workmanlike manner. Any remaining defects to Complainants’ heating and cooling systems are Complainants’ responsibility and go far beyond anything Respondent could conceivably be obligated to cover.

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826