ALJDEC decisions subject to certification as final

06F-G1618-ROC · Registrar of Contractors · 2007-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 18, 2007 APPEARANCES: Dawn Merritt, on behalf of Complainants; April Carroll, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On May 25, 2006, a Complaint was filed with the Registrar of Contractors (ROC) in which Complainant alleged that Respondent had failed to repair several items at their residence. On October 31, 2006, the ROC issued a Citation to Respondent, alleging violations of A.R.S. §32-1154A (7), (23) and (3), namely rule R4-9- 108. FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) In March, 2005, Complainants moved into a new residence constructed by Respondent in Whitman, Arizona. (2) In May, 2006, Complainants filed a Complaint with the ROC in which they alleged: (a) the frame around the door into the master bathroom was cracked; (b) the air conditioning system did not work properly; (c) there were problems with an electrical box; (d) a ceiling repair needed paint; (e) one of the bedrooms had a problem with the closet mirror doors; (f) there was no attic access; (g) the seals around the windows in one of the bedrooms leaked; and (h) Respondent failed to return telephone calls from Complainants. (3) On July 11, 2006, ROC Inspector Jim Diamond conducted an inspection at Complainant’s residence. Based upon that inspection, he issued a Corrective Work Order (CWO), requiring Respondent to repair all but one of the items listed above. As to item (h) above, the Inspector concluded the ROC lacked jurisdiction. (4) On April 25, 2007, the Inspector conducted a pre-hearing inspection and determined that all of the items requiring corrective work had been repaired except for the air conditioning problems and the leaking seals around the bedroom windows. (5) On June 15, 2007, the Inspector conducted a second pre-hearing inspection. Prior to conducting the inspection, the Inspector asked Complainant to set the thermostat in the residence to 78°. When the Inspector arrived at the residence, the outdoor temperature was 105°, and he was informed by Complainant that the thermostat had been set at 78° the entire day before his arrival. (6) Temperature readings were taken at five feet above the floor at several locations inside the house. In the living room, which was the room nearest the thermostat, the temperature registered the lowest reading obtained -- 80°. As the Inspector moved away from the thermostat, the temperature registered progressively higher readings until he reached the furthermost bedroom, where the temperature registered the highest reading obtained -- 85°. The Inspector testified that a variation of 5° from one end of the house to the other did not meet industry cooling standards. The Inspector conceded, however, that occupants of houses being inspected for cooling problems are not asked to set the thermostat any lower than 78° prior to inspections. (7) The Inspector also determined that the seals around the bedroom windows had not been repaired. (8) Complainant testified that, when the home was built, Complainants placed an emphasis on energy-conserving measures such as fluorescent lighting and a programmable thermostat. However, records obtained from Arizona Public Service (APS) for the first year in which the home was occupied established that energy costs were roughly 50% more than the average home. Exhibit C2. Additionally, a document, obtained from Respondent at the time the home was purchased, stated that the cooling system for the house had been “designed to produce a minimum room temperature of 78 degrees Fahrenheit, measured 5 feet above the floor during most weather conditions.” Exhibit C1. (9) Respondent’s representative testified that engineering studies for the house model purchased by Complainants had concluded that the five ton air conditioning unit installed at Complainants’ residence was sufficient for the size of the house. Respondent produced a document, prepared by Chas Roberts Air Conditioning in December, 2004, which verified that conclusion. The report by Chas Roberts stated, however, that, even though the capacity of the unit in Complainant’s residence was adequate, one “supply” needed to be added and some of the ductwork needed to be modified. Exhibit R1. Conclusions of Law: Respondent failed to adequately correct the problems with the cooling system in Complainant’s residence. The APS report does not address comparisons between the number of occupants or relative usage demands and, therefore, has little probative value regarding deficiencies in Complainant’s cooling system. However, there was no dispute that both the brochure prepared for new homeowners by Respondent and the findings of the Inspector were sufficient to establish that the cooling system in Complainant’s residence was inadequate. Respondent also failed to correct the leaking window seals in one of the bedrooms. The failure by Respondent to correct the problems discussed above is a violation of A.R.S. §32-1154A (23) and (3), namely R4-9-108. There was no evidence of a violation of A.R.S. §32-1154A (7).

RECOMMENDED ORDER Commencing the effective date of the Order in this case,[1] it is recommended that Respondent’s Class B license be suspended until Respondent (1) adjusts the cooling system in Complainant’s residence to achieve a minimum of 78° Fahrenheit five feet above the floor in each room inside the house when the thermostat is set at its lowest temperature setting and the outdoor temperature is at least 100° Fahrenheit; and (2) repairs the leaking seals around the bedroom windows. If Respondent completes the corrective work to the Inspector’s satisfaction prior to the effective date of the Order, no suspension should take place and this matter should be closed. Done this day, June 19, 2007.

______________________________________ Michael K. Carroll Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification

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