ALJDEC decisions subject to certification as final

06F-M2475-ROC · Registrar of Contractors · 2007-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 28 and April 17 2007

APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president and qualifying party, Fred Ramirez. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Pursuant to contract, Complainants’ general contractor retained Respondent to install new air conditioners and duct work for a room addition/remodel project for their home. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing are important to note:

a. The main complaint from Complainants, regarding the work performed by Respondent, involved their claim that the master bedroom in the home was not receiving adequate cooling. When they were unable to resolve the problem with Respondent, they filed the instant Complaint with the Registrar of Contractors. b. Subsequent to filing the Complaint with the Registrar of Contractors, the matter was assigned to one of the Registrar’s inspectors. The inspector conducted a jobsite inspection on August 9, 2006, in the afternoon. c. The Registrar’s inspector appeared at the instant hearing and provided testimony, in regard to his investigation of the Complaint. According to the inspector, it was a very hot day on August 9, 2006, and when he went into the master bedroom of Complainants’ home, it was his opinion that it was very cool in said room. In addition, the door to the room was closed for a short period of time, during his inspection, and he determined that there was adequate air flow under the door for the cold air return, located outside the room, to draw out the air from the room. d. Based on his findings at the time of his inspection, the inspector issued a Registrar of Contractors’ form RC-C-007 which provided, in pertinent part, that “there was insufficient evidence to show sub- standard workmanship by the contractor. The room was cool on a very hot day.” e. The inspector testified that Complainants did not show him any of the duct work in the attic, at the time of the above-described inspection. f. Based on their dissatisfaction with the outcome of the Registrar of Contractors’ inspection of their home, Complainants retained an air conditioner contractor, Rob Hauck (“Hauck”) to thoroughly inspect the new air conditioner system installed in their home. Hauck appeared at the instant hearing and provided testimony regarding his findings. g. Hauck testified that he inspected the air conditioning system on or about March 14, 2007. He found that two Trane air conditioners had been installed, a 3 ½ ton unit on the west end of the home and a 2 ½ ton unit on the east side of the home. He made a minor adjustment to the fan speeds on both units. In addition, he found that the thermal sensing bulb on the 3 ½ ton unit had not been installed properly and he corrected this problem. h. His initial impression of the air flow in the house was that it was good. He then investigated the duct system and found several problems with the ductwork installation, as manifested by the following:

1. A collar for a specified section of the flex duct was not properly sealed. 2. Insulation was missing in an area where the main supply duct is attached to the main trunk line. 3. A strap on the ductwork leading to the master bedroom is significantly constricting the duct, thereby reducing the air from said section of ductwork. 4. Inadequate insulation on the supply run to the master bedroom. 5. Due to the manner in which the ductwork was installed, leading to the master bedroom register, air was only going one way through a specified “four (4) way” register, thereby preventing optimum air flow in the room to achieve the desired cooling. 6. A specified exhaust fan duct was not adequately sealed to the connection for the vent pipe for the roof, thereby allowing the exhaust air to be blowing into the attic, instead of going out through the roof vent pipe. 7. The air conditioning works adequately in the master bedroom, as long as the door is kept open. Hauck believes that the door to said room needs to be cut out more at the bottom or a second return air vent needs to be installed in the bedroom, in order to provide adequate cooling with the door to the room closed. He admits that Respondent is not a carpenter and it would not be his responsibility to cut down the bottom of the bedroom door.

i. Hauck testified that someone, other than Respondent, was responsible for the above-described problem with the thermal sensing bulb, since Complainants had the unit worked on by someone after Respondent had completed his work on the project and refused to make any further repairs.

j. Complainants contend that they never received any warranty paper work or maintenance manuals from Respondent, in regard to their new air conditioners. Ramirez testified that all relevant paper work was given to the general contractor on the project. Hauck indicated this was a normal procedure, where a general contractor is involved on the project, as opposed to only the subcontractor contracting directly with the owner. k. Rony Ghanooni (“Rony”) testified that on or about June 6, 2006 there was a problem with the west end unit not working at all. When he contacted Respondent, he indicated that Respondent advised he only gave a one year warranty on labor and since that warranty had expired, Rony should call another contractor. Ultimately, Complainants hired another contractor to repair the unit. l. Rony testified that he paid the general contactor for the air conditioning phase of the project on or about July 20, 2005. He believed he was receiving a ten (10) year warranty on parts and labor and thus, Respondent should have performed the repair work in June 2006. m. Evidence of record showed that Respondent made at least two service calls on the system before June 2006, when he refused to return to the jobsite. One of these service calls was to balance the system and the other was to switch out a defect in the manner in which the cold air ductwork was installed adjacent to the master bedroom. n. Rony testified that no other trades went into the attic after Respondent completed his work. o. Evidence of record showed that the owner’s manual was discovered inside one of the units at the jobsite inspection and Complainants’ general contractor took the papers, advising Complainants that he would copy them and send them a copy. He has failed to provide them with a copy. p. Complainants are seeking their ten (10) year warranty, their owners’ manual, a replacement of the west end unit because they feel it has been damaged by the problems they have experienced with the system, and financial reimbursement for the two billings that they paid to have repairs performed that Respondent should have repaired ($355.00 to the first repair company and 641.74 to Hauck). q. At the instant hearing Respondent stated that he has found out, since the time that he declined to perform the repair work in June 2006, that these Trane units do, in fact, come with a two year warranty on parts and labor.

3. The uncontroverted testimony of Hauck, in regard to what he observed in the attic of the home, is found to be credible and sufficient to support a finding that there are deficiencies in the duct installation work performed by Respondent, as manifested by the items set forth in Findings of Fact 2(h)(1) through 2(h)(6), above.

4. Respondent is not found to be responsible for any adjustments to the door to the bedroom, nor do the facts presented herein support a finding that the bedroom in question requires a second cold air return.

5. The facts presented herein militate for the conclusion that Complainants’ general contractor is responsible for providing Complainants with the requested paper work on the system, not Respondent.

6. Under all of the facts and circumstances presented herein, Respondent’s failure to repair the air conditioner on the June 2006 request is found to be a wrongful act, since the unit was still under a full parts and labor warranty and it had been less than two years since the time the air conditioners were installed by Respondent.

7. Regarding Complainants claim for reimbursement for the costs in repairing the air conditioner, it is held that the Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate any possible monetary damages that Complainants may have sustained. They did not show any competitive bids for the work performed, nor was the bill from Hauck fully explained. Thus, under these circumstances any continuing claim for monetary damages by Complainants will necessarily have to be brought before a civil court of competent jurisdiction.

8. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any complaints on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class K-39 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 2(h)(1) through 2(h)(6). It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation (no. M06-2475), together with the Complaint upon which it is based, shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, April 24, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia Legal Department 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