ALJDEC

99F-2038-ROC-res · Registrar of Contractors · 1999-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 1999. APPEARANCES: Jeana Peterson, Complainant; Pam Peterson, Complainant’s attorney; Ernie McKnight, Complainant’s witness; Karl Colosimo, Respondent’s representative; and Ken Kuhns, Respondent’s witness. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________

Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

1. Complainant and Respondent contracted in the Fall of 1994 for the installation of a solar heater for Complainant’s swimming pool. The heater was installed in October 1994 on the roof of Complainant’s home with pipes to conduct the water from the pool to circulate through the heater on the roof and then return to the pool. A three way valve in the pipes regulated whether the water pumped to the roof or returned directly to the pool depending on how it was set manually. Various problems with the system required repairs over the years, including a recurring problem with leaking.

2. In May 1998, Complainant was preparing to leave her residence for the summer and found that the water to the roof would not shut off. She contacted Respondent and asked him to come and make repairs.

3. In July 1998, the Sun City Posse contacted Complainant’s daughter and informed her that there was a massive increase in water usage at the empty residence. Complainant’s daughter discovered that water had filled a section of the roof and was standing for some period of time. It was confirmed at that time that the valve was in the “off” position but the water was still running. Complainant contacted Respondent to fix the problem. Respondent informed Complainant that the problem had been fixed but the next water bill indicated that it was not.

4. On September 30, and October 2, 1998, Ken Kuhns, Respondent’s installer, went to the home to attend to the repairs. He found that the water was still standing on the roof and the valve had a toggle switch that was set improperly. After moving the toggle switch, Kuhns was able to stop the water flow. He unstopped some drainage holes on the roof to allow the water to drain off the roof and repaired some leaks to the system.

5. Though the water eventually drained off the roof, Complainant had to remove and replace a section of the roof for $3,155.25 and make repairs to the interior of the home for $1,084.12. She also incurred water bills which were approximately $252.79 higher than the previous summer. The solar system was purchased for $3,500 and underwent repairs in the amount of $1,077.93 beyond maintenance and repairs unrelated to the leaks in the system. Complainant also questioned why the system had not been replaced due to the various leaks since it was supposed to be warranted for 10 years. Complainant exhibited a valve which had been replaced which had a rock lodged in it. It was questioned whether this was the problem in the flooding but no evidence was presented to establish this.

6. Respondent’s representative argued that it was the Respondent’s policy not to go to a customer’s home unless someone was there to meet them and to pay for the repairs. He argued that Complainant didn’t ever make an appointment to repair the flooding and that the flooding may have been caused, at least in part, by the clogging of the drainage holes in the roof, which would not have happened had the roof been designed properly or swept regularly. Finally, Respondent offered that the system may not have been replaced under the warranty because the leaks in the actual system were small and easily repaired leaving little effect on the utility of the system, and some of the leaks were from the connections to the system, which were not under warranty.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4) and 32-1156.

2. The Citation and Complaint issued in this matter cites potential violations of A.R.S. §32-1154(A)(3), and (7) and A.A.C. R4-9-108.

3. The Arizona Revised Statutes at §32-1154(A)(3) prohibits licensed contractors from “[v]iolation of any rule adopted by the registrar”.

4. The Arizona Revised Statutes at §32-1154(A)(7) prohibits licensed contractors from “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”.

5. The Arizona Administrative Code at R4-9-108 provides, in pertinent part, “[a]ll work shall be performed in a professional and workmanlike manner”, and “shall be performed in accordance with any applicable building codes and professional industry standards”.

6. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg at 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).

7. In this case, Complainant has not established that Respondent installed or repaired the solar heating system in a substandard manner. However, the weight of the evidence has established that Respondent was notified of an emergent condition at the site of the system he installed and failed to send a worker to fix or at least ameliorate the situation until after substantial damages were incurred by Complainant. Further, the weight of the evidence has established that Respondent led Complainant to believe that he was sending someone to make the repairs. This constitutes a wrongful act, and as a result, Complainant incurred expenses for repairing the roof and interior of her home and was also compelled to replace her system. Complainant has established that Respondent did a wrongful act as a contractor resulting in substantial injury to Complainant.

RECOMMENDED DECISION

Based upon the foregoing, it is hereby recommended to the Registrar of Contractors that Respondent’s Class C-06 license be placed on disciplinary probation for a period of 180 days commencing on the effective date of the Decision and Order entered in this matter.

It is further recommended, as an express condition for the next renewal of Respondent‘s license, notwithstanding the existence or absence of any uniform assessment by the Registrar of Contractors then in effect, Respondent be required to pay an additional $100.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. §32-1132(B). Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued.

Finally, it is recommended that Respondent be strongly admonished to promptly attend to issues of which he has been notified and which he has agreed to service or implied that he would service, especially when there exists potential harm to a customer.

Done this day, October 6, 1999.

OFFICE OFADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater 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