ALJDEC

02F-M0238-ROC · Registrar of Contractors · 2002-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 18, 2002. APPEARANCES: Complainant Debra S. Gross appeared on her own behalf. Respondent Joseph Hendel appeared on behalf of Respondent Hendel’s Refrigeration and Heating, Inc. ADMINISTRATIVE LAW JUDGE: Constantino Flores _____________________________________________________________________ The question presented by this matter is whether Respondent Hendel’s Refrigeration and Heating, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FIINDINGS OF FACT Respondent Hendel’s Refrigeration and Heating, Inc. (“Hendel’s Refrigeration”) is the holder of a Class C-39R License (No. 050612) issued by the Registrar of Contractors. Joseph Francis Hendel is the qualifying party. On or about August 3, 2000, Complainant Debra Gross contracted with Hendel’s Refrigeration to purchase and install a new air conditioning unit in her home, at a cost of $2,0009.41. 3. The new air conditioning unit was installed on August 3, 2000.

4. After Hendel’s Refrigeration installed the unit, Ms. Gross noticed that the air conditioning system did not work properly, and per Ms. Gross’ request, Hendel’s Refrigeration sent out a technician on various occasions to try to find and fix the problem. 5. On August 5 and August 11, 2000, at an additional cost of $419.68, Hendel’s Refrigeration performed additional work on Ms. Gross’ air conditioning system. After performing the additional repairs, during a conversation which took place on or about August 21, 2000, between Ms. Gross and Ted Janssen, the Service Manager at Hendel’s Refrigeration, Ms. Gross stated to Mr. Janssen that the air conditioning system was then working well, cooling her house to 75 degrees, a temperature agreeable to Ms. Gross. Tests of Ms. Gross’ air conditioning unit, which Hendel’s Refrigeration conducted after the August 2000 repairs, confirmed that the unit was working properly. Ms. Gross made no further complaints about her air conditioning system until the beginning of June 2001, when she informed Hendel’s Refrigeration that her air conditioning was not working properly, again. In early June 2001, another air conditioning contractor repaired a bent copper pipe, which attached to the air conditioning unit and was located in the wall of Ms. Gross’ house. At hearing, Ms. Gross claimed that Hendel’s Refrigeration, while installing her unit on August 3, 2000 or during their subsequent repairs performed on her system on August 5 and August 11, 2000, must have damaged the portion of the copper pipe that was in the wall of her house. After getting this pipe fixed in June of 2001, she explained that she has experienced no more problems with her air conditioning system. She did admit, however, to the conversation that she had with Mr. Janssen, on or about August 2000, in regards to her air conditioning system working fine at that time. CONCLUSIONS OF LAW In this proceeding, Complainant Debra Gross bears the burden to prove, by a preponderance of the evidence, that Respondent Hendel’s Refrigeration is subject to discipline for violations of A.R.S. § 32- 1154(A)(3) and /or (A)(7), as charged by the ROC in its January 23, 2002 Citation and Complaint. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Respondent with violating A.A.C. Rule R4-9-108, which among other things requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for the “doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes that Complainant failed to meet her burden to prove that Respondent violated A.R.S. § 32-1154(A)(3) or (A)(7). Because Ms. Gross failed to establish, by a preponderance of the evidence, that Hendel’s Refrigeration violated the above mentioned sections of A.R.S. § 32-1154, it is appropriate that no discipline be imposed against the license of Hendel’s Refrigeration and that the Citation in this case, together with the Complaint upon which it is based, be closed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that no discipline be imposed against the Class C-39R license of Hendel’s Refrigeration and that the Citation in Case No. M02-0238, together with the Complaint upon which it is based, be closed. Done this day, May 5, 2002.

______________________________________ Constantino Flores Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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