ALJDEC decisions subject to certification as final

06F-M2289-ROC · Registrar of Contractors · 2006-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2006 APPEARANCES: Complainant Mona Kollmorgen appeared on her own behalf; Drew Hackney, Respondent’s president, qualifying party, and authorize representative, appeared on behalf of Respondent Hackney Refrigeration Inc. ADMINISTRATIVE LAW JUDGE: Marianne T. Bayardi _____________________________________________________________________ The issue presented by this matter is whether Respondent Hackney Refrigeration Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Respondent Hackney Refrigeration Inc. (“Respondent”) is the holder of a Class C-39R License (No. 109242) issued by the Registrar of Contractors (“ROC”). Drew Hackney is Respondent’s qualifying party. 2. Complainant Mona Kollmorgen owns a residence located at 1059 West Lobo Circle, Mesa, Arizona (the “Home”). 3. On May 15, 2001, Complainant and Respondent entered into a contract for Respondent to install a new heating and cooling unit at the Home. The contracted price was $5,024.64. Complainant paid Respondent pursuant to the contract and Respondent installed the new unit and other ancillary items in June, 2001. 4. Between installation and July, 2003, Respondent made five service calls to the Home. In November, 2001, Respondent went to the home twice, once to diagnose a thermostat wire problem and once to repair it. In June, 2002, Respondent performed preventative maintenance. In June and July, 2003, Respondent replaced a run capacitor wire and then replaced the run capacitor entirely. 5. In or about July, 2003, Treaver Kollmorgen, Complainant’s husband, contacted the unit manufacturer, Lenox, concerning the unit. Lenox Field Technical Consultant Pat Hinson responded to Mr. Kollmorgen on August 1, 2003. Mr. Hinson’s letter (admitted at hearing as Exhibit 3) raises no alarm concerning either the unit or Respondent’s work thereon. 6. Between August, 2003 and April, 2006, Respondent made five service calls to the Home. In April, 2004, the unit had blown a fuse. The invoice from that call noted “if problem continues, may need to replace disconnect.” Approximately 18 months later, in October, 2005, Respondent returned to the Home and replaced the fuse disconnect due to another blown fuse. Respondent made three calls to the Home in April, 2006, first to diagnose and order a replacement reversing valve, second to install the reversing valve and finally to replace a thermostat. 7. Also in April, 2006, unbeknownst to Respondent, Complainant contacted a separate HVAC company, Arizona Refrigeration Service Inc. (“ARS”), to inspect the unit, although the ARS invoice indicated they repaired loose wiring, among other things. ARS returned to the Home twice in May, 2006, first on May 16, 2006 to diagnose a leak at the reversing valve and low refrigerant, and second on May 19, 2006 to replace the reversing valve. 8. On May 18, 2006, Complainant filed the instant Complaint against Respondent with the ROC. The Complaint outlined a timeline of events, similar to those listed above, expressed her dissatisfaction with Respondent, and noted: “[s]ince this unit was installed, we have had recurrent problems . . . .” 9. On June 7, 2006, Complainant requested the instant administrative hearing. On August 3, 2006, the ROC issued Citation and Complaint No. M06- 2289 alleging that Respondent had violated A.R.S. § 32-1154(A)(3), (A)(7), and (A)(13). 10. On August 17, 2006, Respondent filed a written Answer to the Citation and Complaint. 11. The instant administrative hearing took place on November 29, 2006. 12. At hearing, Complainant contended that Respondent installed a faulty unit and that Respondent performed work on the unit that was not done in a workmanlike manner. Complainant also maintained that Respondent refused to go to the Home to discuss problems with Complainant and also refused to provide a different technician, which Complainant claimed required her to find a different service company. Complainant also contended that Respondent did not provide all information to Lenox so that Lenox could properly assess the problems with the unit. 13. Respondent maintained that it installed the new Lenox unit at the Home as contracted and that it performed its work at the Home in a workmanlike manner. 14. Jimmy Jackson testified at hearing that, before retiring two years ago, he maintained air conditioning units for “SRP” for five years and worked in the electrical field for 40 years.[1] He opined that he believed the unit Respondent installed at the Home was an inoperable unit that Respondent had in its system and “piece mealed together.” Mr. Jackson admitted, however, that Respondent did not make the unit, Lenox did, and that he “believed” the date and serial number from the unit was right around the same time as when Respondent installed the unit. Mr. Jackson also testified concerning the ARS April 21, 2006 service call indicating that the ARS findings (namely the loose wire) contradicted any claim that Respondent performed its work correctly on April 14, 2006. However, Mr. Jackson also acknowledged there would be two or three wires in question and he could not say which wire either contractor worked on. Mr. Jackson also testified that Complainant had set a meeting with Mr. Hackney at the Home on May 17, 2006 to discuss the condition of the unit and that Mr. Hackney refused to attend. Thereafter, Complainant had the reversing valve replaced by ARS. 15. Complainant testified that Mr. Hackney refused to attend the meeting on May 17, 2006. As a result, she had ARS replace the reversing valve on May 19, 2006. According to Complainant, ROC Inspector Clark advised her to photograph the reversing valve and the unit itself. Complainant indicated that her goal in taking the photographs was not to show the defect, but to show when the part was repaired. Complainant acknowledged that ARS did not find any problem with the reversing valve when it inspected the unit on April 21, 2006. Complainant intimated that, because ARS found items to correct only seven days after Respondent had worked on the unit, Respondent’s work wasn’t proper, though ARS did not specifically mention any workmanship issues. 16. Dominique Lassauge, Respondent’s general manager, testified that she provided all information to Lenox prior to Mr. Hinson’s August 1, 2003 letter. Moreover, Respondent never refused service to Complainant and actually re-adjusted its schedule to accommodate Complainant. Ms. Lassauge spoke with Mr. Kollmorgen on May 17, 2006, ostensibly to confirm the meeting later in the day, and he informed her that someone else was servicing the unit. Ms. Lassauge then called Mr. Hackney who asked her to call Complainant and cancel the meeting, which Ms. Lassauge testified she did. Ms. Lassauge also testified that, if a unit is defective, it is the responsibility of the manufacture, not the installer, to replace the unit. 17. The Administrative Law Judge finds that Complainant failed to present sufficient credible and probative evidence to establish that Respondent performed any work that was in violation of applicable workmanship standards or that was not completed in a workmanlike manner. The Administrative Law Judge also finds that, although the communication between the parties was at times strained, Complainant did not establish that Respondent committed any wrongful or fraudulent act. CONCLUSIONS OF LAW 1. In this administrative proceeding, Complainant bears the burden to prove, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(3), (A)(7), and/or (A)(13) as charged by the ROC in its August 3, 2006 Citation and Complaint. See A.A.C. R2-19-119. 2. 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). 3. 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. 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. The Administrative Law Judge concludes that Complainant failed to present sufficient credible and probative evidence that Respondent performed work that was inconsistent with applicable standards or that was not done in a workmanlike manner. Therefore, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(3). 4. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . resulting in another person being substantially injured.” The Administrative Law Judge concludes that Complainant failed to present sufficient credible and probative evidence that Respondent committed a wrongful or fraudulent act. Therefore, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(7). 5. Under A.R.S. § 32-1154(A)(13), a contractor is subject to discipline for “failing in any material respect to comply with the provisions of this chapter.” Complainant failed to address this allegation at hearing. Therefore, the Administrative Law Judge concludes that Respondent has not violated A.R.S. § 32-1154(A)(13). 6. Based on the foregoing, the Administrative Law Judge concludes that no grounds exist to impose discipline against Respondent’s Class C-39R License (No. 109242). RECOMMENDED ORDER The Administrative Law Judge recommends that no discipline be imposed against Respondent’s Class C-39R License (No. 109242) and that Citation No. M06-2289 and the Complaint upon which it is based be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, December 11, 2006.

______________________________________ Marianne T. Bayardi Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

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

By ___________________________

----------------------- [1] Mr. Jackson is Complainant’s father. Complainant and Mr. Jackson did not divulge this fact during direct examination, but Respondent elicited it from Mr. Jackson on cross examination.

-----------------------

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