ALJDEC

01F-2166-ROC · Registrar of Contractors · 2001-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2001. APPEARANCES: The Complainant, Glenn Reithinger, appeared personally. The Respondent was represented by its service manager, Russell Blaha. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent was the original subcontractor who installed the heating system for the original owner of Complainant’s residence. 2. The heating unit was started on April 23, 1998 with no problems. 3. The hearing unit installed by Respondent had a one year Lennox Quality Care Program Equipment Limited Warranty. 4. On or about July 7, 1998, Respondent performed a service call on that unit to repair a faulty door switch. Respondent made no further service calls for the unit until a November 30, 2000 request by Complainant.

5. Complainant and his wife moved into the subject residence in May of 1999 when the house was one year old. 6. On or about November 22, 2000, Complainant requested a service call from Day & Night, a licensed air conditioning and heating contractor. 7. During the November 22, 2000 service call, the Day & Night technician made the following diagnosis/solution:

“Start furnace indoor Blower Motor has vibration heats up drops out Blower Wheel out of balance. Motor bushings are worn. Replace both as (sic) unit. (Order parts.) Install on 11/26. Combustion Air Blower is noisy. Gasket blown out leaking gas fumes in attic. Unit out of level puts flue pipe in bind. I believe this was a problem from date of installation. Owner should contact original contractor check on workmanship warranty.”[1]

8. During the November 22, 2000 service call, the Day & Night technician installed a blower wheel and a ¾ horse powered, three speed blower motor. The charge for the service call was $696.50. 9. On November 29, 2000, Day & Night performed another service call at Complainant’s residence. 10. During that service call, the technician made the following diagnosis/solution concerning the heat exchanger:

“Furnish and install combustion air blower recommended (repairs on 11/22) clean heat exchanger inside with brush and vacuum. Start furnace check safety switches. All ok at this time.”[2]

11. During the November 29, 2000 service call, the technician did clean the inside of the heat exchanger and cabinet. The technician also installed a combustion air blower. 12. The total cost to Complainant for the November 29, 2000 service call was $384.27. 13. On or about November 30, 2000, Respondent received a request for a service call from Complainant. 14. On or about December 1, 2001, Respondent’s staff examined the unit and opined that that the unit was out of level as the result of one of the support brackets having been removed. Respondent contends that the presence of soot deposits is normal. 15. Respondent’s December 1, 2001 inspection revealed that carbon monoxide was leaking from the unit into the house. Respondent advised Complainant that the unit should not be operated until additional repairs were made. Respondent further advised Complainant that the heat exchanger was no longer under warranty. 16. It is uncontroverted that Respondent offered to do repairs to Complainant’s heat exchanger for a fee, but that Complainant did not want Respondent to perform any repairs to the unit. 17. Respondent’s service call was approximately two years and seven months after the unit was started and the house occupied by the original owner. 18. On or about February 25, 2001, Complainant filed a complaint with the Registrar of Contractors alleging that Respondent violated provisions of the State’s contracting laws by not properly performing the original installation of the heat exchanger. 19. Complainant’s complaint was filed with the Registrar approximately two years and ten months since the unit was originally started and the house originally occupied. 20. Complainant seeks damages from Respondent in the amount of $384.27 for the purchase and installation of the combustion air blower.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof in this matter. The standard of proof is that of a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 2. Respondent failed to timely file his complaint with the Registrar of Contractors pursuant to the provisions of A.R.S. § 32-1155(A), which provides:

“(u)pon the filing of a written complaint with the registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license.”

Complainant has alleged that Respondent violated the provisions of the State’s contracting laws in its original installation of the heat exchanger in April of 1998. There is credible evidence that the original owner occupied the residence at that time. Since Complainant moved into the residence one year later, he had approximately one year from that date to timely file a complaint with the Registrar of Contractors about the original installation. His complaint about Respondent’s original installation of the heat exchanger is untimely insofar only as it pertains to any administrative disciplinary action against Respondent by the Registrar of Contractors. 3. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7) and (3); namely A.A.C. R4-9-108. 4. The citation and complaint in this matter should be dismissed. 5. Even if Complainant had proven that Respondent violated the charged provisions, his request for monetary damages is beyond the administrative penalties that the Registrar may impose upon a licensee found to have violated the provisions of A.R.S. § 32-1154(A). While the Registrar lacks authority in this matter due to untimeliness, Complainant may have a cause of action for damages against Respondent before a civil court of competent jurisdiction.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed. Done this day, August 14, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________

----------------------- [1] See Complainant’s Exhibit 1. [2] See Complainant’s Exhibit 11.

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