ALJDEC

01F-M0125-ROC · Registrar of Contractors · 2000-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2000 APPEARANCES: Robert and Michelle Murray, Complainants, in their own behalf Jeff Dawkins, President, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. On July 10, 2000, the Complainants contacted the Respondent because their five and a half year old air conditioning unit was not cooling their home. The unit was serviced annually although the nature and quality of the service is unknown. 2. The Respondent sent one of its repairmen (Czar) to the Complainant’s home. According to Czar, the air conditioning unit needed freon (three pounds is listed on the bill), an electrostatic filter ($60), coil and duct ($160.00) cleaning. Czar also offered the Complainants a one year Preventive Maintenance Agreement for $120.00 and a digital thermostat for $100.00, which the Complainant’s accepted. The Respondent provided some material and did some work at no cost or at a reduced cost because the Complainants agreed to the maintenance contract. The total cost to the Complainants was $440.00 plus $8.00 tax. They paid $288.00, leaving a balance of $160.00. 3. Czar left after adding the freon and putting in the filter. He told the Complainants that the problem had been corrected but that someone was to return by July 13, 2000, to clean the coil and ducts. According to the Complainants, the temperature in the house only came down one degree, from 85 to 84 degrees (Fahrenheit) . 4. Another of the Respondent’s employees (Sean), went to the Complainants on July 13, 2000, for the purpose of cleaning the ducts and coil, and perform a sanitizing treatment. After this work was done, the temperature in the home came down to 80 degrees, which is generally where the Complainants keep the temperature. Complainant’s did not note any further problems until approximately July 19, 2000, when they discovered that the air conditioning compressor was running constantly even though the interior fan had shut off when desired interior temperature levels were achieved. 5. Another of the Respondent’s employees (Steve), went to the Complainant’s home. Steve told the Complainants that the system had frozen up and needed to thaw out. Steve returned later that afternoon and, based on the bill, he cleaned a clogged flow piston, flushed the system, installed a liquid line filter drier, replaced two valve cores, recovered and replaced freon (bill lists eight pounds added). Steve submitted a bill for the flow piston for $384.00 plus $19.20 tax ($403.20). Steve told the Complainants that he found a piece of metal in the lines which blocked the freon. The Complainants paid by check. 6. Shortly after Steve left the Complainants noted that the compressor was still not shutting off. They again contacted the Respondent and were told that they would have to remove the fuse to turn it off and Steve would return the following day. 7. The Complainants told the Respondent not to return and stopped payment on their last check for $403.20 to the Respondent. 8. The Complainants then contacted Arizona Refrigeration which went to the house on July 20, 2000. According to the Complainants, Arizona Refrigeration determined there was a pound too much freon in the system, the electrical contactor was stuck in a closed position, and that the static pressure was .6 (which was considered too high), because of the filter installed by the Respondent. Arizona Refrigeration replaced the contactor for $182.14 (including tax) and according to the Complainants also removed the excess freon. According to the Complainant, Robert Murray, he checked a duct which was purportedly cleaned by the Respondent, but it was in fact still dirty. 9. The Complainants filed their complaint with the Registrar of Contractors (Registrar), on July 28, 2000. 10. On August 7, 2000, Arizona Refrigeration returned to the Complainant’s home to finish the job. This service call included a diagnostic ($44.00), repair of the restriction at the orifice ($135.05), cleaning of the orifice, installation of a drier before the orifice at the air handler ($60.05), removal of the drier (installed by the Respondent) at condensing unit vacuum system, and charging with freon ($18.56). The total cost for the work was $267.66 (including tax). 11. The air conditioning worked satisfactorily after the last service call by Arizona Refrigeration. 12. The Complainants are seeking return of the check upon which they stopped payment, rescission of the service contract and restitution for those materials or services that were incorrectly or unnecessarily done. 13. The Respondent contends that the materials provided and the work done by his employees was appropriate, that the service contract should be prorated and if the service contract is terminated, the $25.00 cancellation fee should be imposed. Conclusions of Law The allegation in the Citation and Complaint concerns A.R.S. §32- 1154(A)(7), the doing of a wrongful or fraudulent act resulting in substantial injury to another. A.R.S. §32-1156.01 provides that an Administrative Law Judge may recommend that restitution be made by a licensee to an injured person. 1. The evidence shows that the Respondent went to the Complainant’s home on three occasions over a period of nine days. The Respondent charged over $800.00 (including the service contract), to service and repair the system. The Respondent did not repair or service the system so that it would work properly, and even though the Complainants stopped payment on the $403.20 check to the Respondent, they had to pay approximately $450.00 to Arizona Refrigeration to have the air conditioning properly corrected. 2. The preponderance of the evidence shows that the Respondent did not discover a significant problem (the electrical contactor) and also did work that was incorrect, unnecessary or incomplete (type of filter installed, drier placement, amount of freon, inadequate duct cleaning). Although these failings could also be viewed as a workmanship issue under A.A.C. R4-9-108, the events when viewed in their entirety constitute a failure to provide the goods or services which were bargained for and lend themselves to a determination under the wrongful acts paragraph of the statute. 3. In light of all the facts of the case it is concluded that the Respondent has committed a wrongful act so as to violate the cited statutory provision of A.R.S. §32-1154(A)(7). An exact determination of the value of the appropriate work done and materials provided by the Respondent cannot be made based on the record, especially in light of the Respondent’s inability to locate the problem with the unit. It is unknown if certain work which was done or claimed to be done, was necessary or actually done or competently done (the Complainant testified a least one duct he checked was dirty after the Respondent charged $160.00 for duct cleaning). The Complainants will accept the cost of the thermostat ($125.00 but discounted to $100.00 with the service contract), but this appears to be the only item they acknowledge as having been properly charged against them. The evidence indicates that the Respondent also provided three pounds of freon (listed at $75.00), that he did not charge for, because of the service contract. In view of the Respondent’s inability to find and correct the air conditioning problem, the service contract was shown to have been of no additional benefit to the Complainants and its total rescission without proration and without a penalty is justified upon crediting the Respondent with the $75.00 for the freon and the $25.00 extra for the thermostat. Other costs are not subject to credit because the efficacy of the work or materials is not established. In addition to the $125.00 for the thermostat and $75.00 for the freon, the Respondent should also be allowed credit for one valid service call (billed at $40.00) and a partial credit ($80.00) for a partial duct cleaning. Based on the evidence of record and an approximate determination of the legitimate value of the services and materials properly provided by the Respondent, it is concluded that the Complainants are entitled to a restitution refund of $120.00 (tax not included), plus the return of their check no.3464 upon which they stopped payment. Recommended Order In view of the foregoing it is recommended commencing on the effective date of the Order entered in this matter, that the Respondent’s Class C-39R license shall be suspended until the Registrar of Contractors receives written proof that the Respondent has paid or tendered payment in the amount of $125.00 as restitution to the Complainants and has returned to the Complainants, their check no. 3464 in the amount of $403.20. It is further recommended that if the Respondent fully complies with the Order entered in this matter then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be closed.

Done this day, December 14, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, 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