ALJDEC

01F-1980-ROC · Registrar of Contractors · 2001-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2001 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its owner and qualifying party, Bob Littler. 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. Pursuant to contract, Complainants retained the services of Respondent to replace their existing Goodman heat pump. Complainants allege certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about May 5, 2000, Respondent installed a new Carrier heat pump on Complainants’ home. The new unit in question was a 10 seer rated machine. b. At the time of the initial contract, the parties discussed either installing the aforementioned 10 seer unit or the slightly higher priced ($300.00 extra) 12 seer unit. c. Sharply conflicting testimony was presented from the parties, regarding the issue of whether or not, at the time of initial contract, Respondent advised Complainants that the more expensive unit would be quieter, such that no basis exists to disbelieve either sides’ version of this issue. Nevertheless, this Tribunal does find that Respondent advised Complainants that the more expensive heat pump was a better unit. d. At the time of the bid to replace the heat pump, Complainants advised Respondent that they were planning on moving in the near future. Although Complainants deny that they advised Respondent they were trying to save money on the heat pump replacement project, Respondent was under the reasonable belief that Complainants wanted to keep the project costs as low as possible, due to the near future sale of the home. In this regard, Respondent did not replace the existing ductwork elbow on the roof nor the fuse disconnect box when he replaced the heat pump. e. Shortly after the new unit was installed, Complainants contacted Respondent referable to what they felt was excessive noise in the unit. Respondent responded to this call and determined that there was a specified problem with the door to the fuse disconnect box. Notwithstanding the fact that he did not install the existing fuse disconnect box, Respondent made a repair to same in order to eliminate the rattle in said area. f. Although the time frame is unclear, at some point the parties observed that the “seal tight” connector running into the fuse disconnect box was not flush with the fuse disconnect box opening, thereby preventing a water tight connection between the electrical wiring and the fuse disconnect box. Respondent contends that when he was showed this problem, he corrected same. g. On or about August 5, 2000, Complainants were not experiencing any air conditioning or air flow of any kind in their home. They ultimately spoke to Respondent at the end of the work day, referable to this problem and Respondent advised that it sounded like a fuse problem in the fuse disconnect box but that he would be unable to come to their home, since he had already completed a 15 hour work day. Complainants found another contractor that came to their home that same evening and replaced the fuses in the fuse disconnect box. h. On or about August 9, 2000, Complainants again were receiving no air flow from their air conditioner. They called Respondent and advised of this condition and the fact that the fuses had been replaced a couple of days before. Respondent, at this time, opined that they probably needed a new fuse disconnect box and that he would charge them a specified sum of money to replace the box. Complainants elected to replace the box and the blown fuses themselves. i. Due to Complainants continuing complaints regarding the noise level of their new heat pump, the local manufacturer’s representative (“representative”) was called out to examine the situation. Meetings occurred with Complainants, Respondent and the representative. In this regard Respondent made several repairs to the installation, including adding specified sheet metal in order to obtain a better alignment between the return air and supply air delivery sides of the unit and the existing elbow that was attached to same. Respondent also installed a “silencer kit.” This work was done at no cost to Complainants. j. Notwithstanding Respondent’s several attempts at remedial work, in order to resolve the complained of noise, Complainants continued to object to the noise level emanating from their heat pump and continued to complain regarding this problem to the representative. k. The representative appeared at the instant hearing and testified to the following: 1. The unit sold to Complainants was a “low end” model. 2. Carrier has had a lot of problems with this unit. 3. Respondent had failed to install specified flex duct connectors, which could have helped the noise situation. 4. Respondent failed to install a trap for the condensate line. 5. After Respondent completed some modifications to the unit installation, it seemed to help and he had believed Complainants were satisfied. Ultimately, he determined that Complainants were not only still unhappy with the unit but he believed “they would never be satisfied with this unit.” Thus, he made a business decision to replace the unit with the upgraded 12 seer unit at no additional cost to Complainants other than the labor charges that might be involved. His decision was not based on any conclusion that the original unit was defective or not fit for its intended use.

l. Complainants contacted Respondent regarding performing the labor on the replacement heat pump offered by Carrier and he advised that he would have to charge for his labor but would give Complainants a reduced price of only $300.00 (which also included the cost for the crane). m. Complainants believed that Respondent should have performed the replacement labor at no cost, pursuant to the one year warranty that he had provided on the installation of the original Carrier heat pump. Complainants ultimately hired another contractor to perform the labor and replace the existing ductwork elbow. n. Complainants seek monetary damages for not only the costs incurred in the labor to replace the original carrier unit but also for the new elbow, the fuse replacements and service calls in that regard, the new disconnect box, wire compound, lost time from work for meeting with Respondent, representative and the new contractor to discuss problems, repair, and replacing the unit, along with their small claims court costs and subpoena fees. Complainants claim entitlement to a total of $2,076.40 in monetary damages. o. Complainants contend that Respondent failed to install a condensate trap in the condensate drain, contrary to manufacturer’s specifications. Respondent indicates that the condensate line in question was a very short run and that, in his experience he finds that it is better not to install the trap (a very inexpensive item) on short condensate line runs such as the one at Complainants’ home, as it tends to clog the line and is not needed on a short run condensate line. p. Complainants contend that Respondent neglected to place specified anti- corrosion wire compound on an aluminum wire in the disconnect box and that said omission is contrary to applicable electrical code. Respondent did not dispute this issue. q. Complainants contend that Respondent neglected to glue the condensate line to the unit with PVC cement. Respondent testified that he does not glue the lines onto the unit, in order to make for an easier repair or replacement of the line if needed in the future. r. Complainants contend that Respondent should have replaced the existing ductwork elbow and disconnect box at the original installation. Respondent testified that there is no requirement that the elbow be replaced if it is serviceable for the new installation and the same with the disconnect box. Moreover, he believed that Complainants were trying to keep the project costs low, so he did not even suggest or offer to bid to replace said items.

3. Carrier’s specification sheet was entered into evidence and same shows that flexible connectors between the ductwork and the unit should be installed in order to “prevent transmission of vibration.” Respondent’s failure to install same is determined to constitute not only a deviation from manufacturer’s specification but also substandard workmanship.

4. Respondent’s failure to install the anti corrosion compound also constitutes a deviation from code and substandard workmanship.

5. The instant record was inadequate to support any finding that Respondent was required to use PVC cement to glue the condensate line to the unit or that he was required to replace the elbow or disconnect box.

6. Although Respondent did issue a one year warranty on the unit that he installed, it is determined and held that the decision to replace the unit was made by Carrier not because the original unit was defective but merely as a good will gesture to satisfy a very unhappy customer. Under the facts and circumstances presented herein, Respondent was under no legal or contractual obligation to provide free labor to accommodate Carrier’s good will gesture. Respondent’s decision to charge Complainants $300.00 for the labor to install the replacement heat pump is not found to constitute a violation of any specific section of the State’s Contracting laws nor the spirit and intent of said laws.

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be considered as a direct result of this case.

8. It is important to note that the replacement of the heat pump was accomplished prior to the time that the instant complaint was filed with the Registrar of Contractors. Thus, there was no opportunity for the Registrar of Contractors to follow its normal procedure of convening a jobsite inspection with an appointed Agency inspector to examine the issues of the complaint and determine whether or not the contractor should be required to accomplish any remedial work. Moreover, since the only issue was one of noise and not adequacy of cooling or heating, the replacement could have been accomplished after the time that the Registrar of Contractors inspector had an opportunity to investigate the issues of the complaint.

9. Notwithstanding the foregoing findings of Contracting law violations regarding the flex connectors and the anti corrosion compound, based on the fact that Respondent was shown to have made very reasonable efforts to respond to Complainants’ noise concerns and completed specified remedial work in an attempt to alleviate said noise complaint, no disciplinary sanctions against Respondent’s license appear to be warranted in the instant case.

CONCLUSIONS OF LAW

The evidence of record supports a very limited finding of violations of the provisions of A.R.S. § 32-1154A (7), (2), and (3); namely Rule R 4-9- 108, based on Respondent’s failure to install flex connectors and anti corrosion compound, as described in the foregoing Findings of Fact.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, June 15, 2001

______________________________________ Mark A. Silver 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 ___________________________

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