ALJDEC

01F-1866-ROC · Registrar of Contractors · 2001-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2001 APPEARANCES: Charles Fisher on his own behalf; Carl Bartoli on behalf of Donley Service Center, Inc. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT In January, 1999, Charles Fisher (Complainant) visited the Arizona State Fair Grounds during a home show and met with representatives of Donley Service Center, Inc. (Respondent) at a booth. At that time, Complainant indicated that he was interested in having an evaluation performed so as to obtain the most energy efficient air conditioning/heating unit for his home (Home). Subsequently, on January 29, 1999, a salesperson from Respondent visited the Home and prepared a proposal to replace Complainant’s existing Goodman CPE060 five ton heat pump (Goodman unit) with a Lennox 10HPB060 five ton heat pump (Lennox unit) for the sum of $4,560.00. Complainant accepted and signed the proposal. Prior to accepting the proposal, Complainant received and relied upon a letter from a satisfied customer of the Respondent (Exhibit 3) and Complainant relied upon representations made by the salesperson that Respondent prides itself on customer satisfaction. It is undisputed that Respondent received payment from Complainant in the sum of $4,560.00. According to Complainant, when the Goodman unit had faltered, he did not have enough time to adequately research a replacement unit because of a planned vacation. Consequently, Complainant asserted that he relied upon Respondent’s expertise in selecting the most energy efficient air conditioning/heating unit for the Home. On February 2, 1999, the Lennox unit was installed and the Goodman unit was removed from the Home. Complainant testified that shortly after the installation of the Lennox unit, it began to make a lot of noise and did not heat the Home properly. On February 3, 1999, Respondent made a visit to the Home and installed a filter. Respondent visited the Home on August 4, 1999, and installed a return air grille. Upon being contacted by Complainant, Respondent performed a free maintenance inspection of the Lennox unit on December 21, 1999. On January 10, 2000, Carl Bartoli (Mr. Bartoli), Respondent’s Customer Service Manager, and a senior technician visited the Home as a result of a complaint that the Lennox unit was not functioning properly. Mr. Bartoli testified that Respondent adjusted the heat anticipator in the Home’s thermostat to address the heating problem. Mr. Bartoli testified that after each of the above-mentioned visits, Complainant signed a form indicating that he was satisfied with the work Respondent performed. Complainant, however, testified that he signed the forms to show that Respondent had appeared at the Home and performed some work. Complainant was not satisfied with how the Lennox unit was performing and was not satisfied as to how Respondent was addressing his problems with the unit. After January 10, 2000, Complainant contacted Respondent by telephone and left two messages but did not receive any return telephone calls from the Respondent. It is undisputed that after January 10, 2000, through September, 2001, Respondent did not contact Complainant to attempt to resolve his complaint. Complainant testified that he went to the Arizona State Fair Grounds during another home show in October 2000. While there, he visited Respondent’s booth to complain about his situation and Respondent’s representatives ignored him. Mr. Bartoli testified that it is Respondent’s standard operating procedure to contact customers to attempt to resolve complaints that have been filed with the Registrar of Contractors. Mr. Bartoli could not provide an explanation as to why that wasn’t done in this instance. During the hearing, Complainant raised some issues as to the amount of time and nature of work performed by Respondent during the above-mentioned visits and contended that the work never resolved the noise and functioning problem he had with the Lennox unit. As a result of his dissatisfaction with the Lennox unit and Respondent’s failure to correct the problem, Complainant filed a complaint against Respondent with the Registrar of Contractors alleging that he did not receive the most energy efficient unit available at the time. Inspector Les Combs (Inspector Combs), the assigned Registrar of Contractors inspector, notified Complainant and Respondent that he would perform a jobsite inspection of the Home on February 14, 2001. Inspector Combs, Complainant and his wife, and Mr. Bartoli were present during the jobsite inspection. Complainant testified that when Inspector Combs arrived at the Home, Inspector Combs stated that the temperature of the Home felt comfortable to him. Complainant responded that it did not feel comfortable to him. Complainant, who is African-American, testified that Mr. Combs “talked down to him” causing Complainant to become agitated and to state to Inspector Combs in words to the effect that it appears that “people in Arizona think all black people are stupid.” After that remark, Complainant testified that Inspector Combs terminated the jobsite inspection and that neither Inspector Combs nor Mr. Bartoli looked at the utility bills his wife had placed on the dining room table. In contrast to Complainant’s testimony as to the events that occurred during the jobsite inspection, Mr. Bartoli testified that when he and Inspector Combs entered the Home, they looked at the setting on the thermostat and observed that the temperature in the Home was the same as the setting. According to Mr. Bartoli, Inspector Combs mentioned that the temperature felt comfortable. Shortly thereafter, the conversation became heated and Complainant accused Inspector Combs of being a racist. Mr. Bartoli did not testify that Inspector Combs made any remarks or took any action to indicate that Inspector Combs acted in an inappropriate manner. After that time, Complainant became agitated so Inspector Combs and Mr. Bartoli left the Home. Mr. Bartoli testified that Mrs. Fisher was looking for the utility bills but that as of the time that the jobsite inspection was terminated, she had not located the bills. Mr. Bartoli also testified that while he was at the Home, he heard no noise from the Lennox unit. The testimony presented by the parties as to what occurred at the above- mentioned jobsite inspection is sharply conflicting to the extent that the Administrative Law Judge has no reason to disbelieve either party. Therefore, the evidence is inconclusive as to what occurred during the jobsite inspection except for the fact that Complainant became upset based upon his perception that Inspector Combs was treating him in less than an appropriate manner and that the jobsite inspection ended abruptly. During the hearing, Complainant complained that the Registrar of Contractors has not treated him fairly. In support of that position, Complainant referred to two letters that he sent to the Registrar of Contractors. One of these letters was to Inspector Combs, wherein Complainant requested a hearing and took exception to Inspector Comb’s decision that no action was required by Respondent regarding Complainant’s complaint. The other letter was to Phil Pettice, Inspector Combs’ supervisor, wherein Complainant requested a hearing and mentioned that his complaint was not being taken seriously. A review of the above-mentioned letters reveals that the letters do not necessarily call for a response from the Registrar of Contractors other than setting the matter for a hearing, which was accomplished. On September 28, 2001, Complainant hired another contractor to remove and replace the Lennox unit with a 13.5 seer Lennox unit that is more efficient, for a cost of $7,200.00. Complainant sold the Lennox unit for $1,500.00. During the hearing, Complainant requested that Respondent be ordered to provide him with a refund in the amount of $3,060.00 ($4,560.00 - $1,500.00). It is undisputed that Complainant did not notify Respondent of his intention to replace the Lennox unit with another unit. The evidence of record fails to show that the sum of $1,500.00 for the Lennox unit represents the fair market value of the Lennox unit at the time Complainant sold it. Complainant testified that the air conditioning/heating unit he now has in the Home was available when Respondent installed the Lennox unit, that the new unit is more efficient, and the new unit is not as noisy as the Lennox unit was. During the hearing, Complainant testified that the Lennox unit was a little noisier than the Goodman unit and was not more energy efficient. In support of that contention, Complainant referred to figures representing his total utility expenditure for the years 1997 and 1998 with the Goodman unit and the years 1999 and 2000 with the Lennox unit. (Exhibit 4). Complainant conceded that during the years 1997 through 2000, there were rate increases in utility charges to residential customers but he was unable to provide information as to the amount of the rate charges or when they occurred. Because the rate information was not presented, as well as other various factors such as that the total utility costs include charges for uses other than for heating or cooling, Exhibit 4 does not present reliable information to compare the energy efficiency of the Goodman unit to the Lennox unit. Complainant also referred to a survey taken by the Air Conditioning, Heating, and Refrigeration News that showed Trane as receiving a higher rating of excellence over Lennox. Complainant believes that the survey supports his position that the Lennox unit was not the most energy efficient unit at the time of the purchase of the Lennox unit. The above-mentioned survey is not dated, it does not refer to individual products of manufacturers, and it does not refer to square footage of homes. Therefore, at best, the survey shows that generally, contractors rated Trane the best manufacturer. However, the survey provides no information from which the Administrative Law Judge can discern or infer that the Lennox unit was not the most energy efficient unit at the time. During the hearing, Complainant testified that Respondent installed the Lennox unit improperly by using a 7/8” suction line instead of a 1 1/8” suction line as required by the manufacturer. According to Complainant, the use of the existing suction line of 7/8” restricts the air flow and diminishes the efficiency of the unit. In support of that contention, Complainant referred to page 5 of the Lennox unit’s manual (Exhibit 1), which calls for a 1 1/8” suction line to be used with the installation of the Lennox unit. Mr. Bartoli testified that the Lennox unit’s manual (Exhibit 1) refers the contractor to contact the Lennox Application Engineering Department in applications requiring line greater that 50 feet, which was the case at the Home. Mr. Bartoli also testified that it was standard operating procedure for Respondent to contact that department and that the installation performed at the Home was done in accordance with direction Respondent received from that department. Mr. Bartoli further testified that Complainant received the parts and materials that were set forth in the proposal accepted by Complainant. The evidence of record corroborates that statement. 35. Complainant did not establish: a) that the Lennox unit was not an energy efficient unit; b) that it was not the most energy efficient unit available for the Home at the relevant time; or c) that the Lennox unit was improperly installed. CONCLUSIONS OF LAW The evidence of record does not establish that Respondent violated the provisions of A.R.S. §32-1154(A)(7), or (A)(3), or A.A.C. R4-9-108. Although the evidence of record showed that Respondent did not follow its practice of returning telephone calls to customers and did not attempt to resolve the complaint after it was filed with the Registrar of Contractors, as it customarily does, and the Respondent could have provided better customer service to Complainant, such action does not violate any of the provisions of law cited by the Registrar of Contractors in the Citation and Complaint issued in this matter. RECOMMENDED ORDER Based on the above, it is recommended that no disciplinary action be taken against Respondent’s Class C-39 license and that the Citation and Complaint issued in Case Number 01-1866 be dismissed. Done this day, December 21, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________ -----------------------

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