ALJDEC

99F-2086-ROC · Registrar of Contractors · 2000-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2000

APPEARANCES: Rod Stewart appeared on his own behalf; Donald McEwan, owner and Qualifying Party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Rod Stewart alleges that Respondent Donald McEwan dba Sonoran Fireplace Company improperly installed a pre-fabricated fireplace at Complainant’s house. At the beginning of the hearing, in response to this Administrative Law Judge’s questions, Complainant stated that he is the Qualifying Party and President of Desert Sand Construction, Inc., and that he was acting as general contractor while building the house. However, because the house is Complainant’s residence, this Administrative Law Judge has changed the caption to reflect that Complainant is bringing the complaint mainly as the homeowner. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has not violated the statutes. FINDINGS OF FACT 1. Respondent is the holder of a class C-45R license (No. 135281) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to install and repair premanufactured fireplaces. 2. In October 1998, Complainant and Respondent entered into a contract that called for Respondent to supply and install two premanufactured, gas fireplaces at Complainant’s house, one in the master bedroom and one in the great room. The fireplace in the great room is the subject of the complaint 3. The vents for the fireplaces were installed by Complainant. He installed the vent for the great room fireplace on the exterior wall, underneath the west patio cover. Complainant also installed the gas lines and hooked the fireplaces up to the lines. When Respondent came out to perform the initial start-ups of the fireplaces, he could not do so because the gas line was being pressure tested. Respondent left the site, stating that he would be back the next day to do the start-ups. 4. Before Respondent returned, Complainant started the great room fireplace on his own. Because Respondent was not present to properly adjust the fireplace, it burned too hot and produced a great amount of soot. As a result, Complainant’s patio soffit (the underside of the overhang) warped from the heat and was stained by soot. (See photographic Exhibits 1-3.) 5. Complainant filed a complaint in January 1999, complaining about the warping and several other matters that will not be addressed because they have been fixed. Registrar of Contractors (ROC) Inspector Phil Coscia performed a jobsite inspection on March 2, 1999. He found that Respondent has repaired the other items and that Respondent was not responsible for the warping because Complainant had determined the location of the vent under the soffit. Inspector Coscia did not issue a Corrective Work Order. Complainant requested a hearing. CONCLUSIONS OF LAW 1. Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainant has not met that burden. 2. Respondent presented sufficient evidence to show that Complainant determined the placement of the vents and started the fireplace without Respondent present, against Respondent’s request. Thus, there was no one there to properly adjust the fireplace and possibly avoid the damage. Furthermore, the damage may have resulted from the placement of the vents, which Complainant, a knowledgeable contractor, determined. The evidence, considered in its entirety, does not show that Respondent violated the statutes in this matter. RECOMMENDED ORDER Based on the above findings and conclusions, it is hereby recommended that the Citation and Complaint in Case No. 99-2086 against Donald McEwan dba Sonoran Fireplace Company be dismissed.

Done this 18th day of May 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of May 2000, to:

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

By ___________________________

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

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