ALJDEC decisions subject to certification as final

06F-M2579-ROC · Registrar of Contractors · 2007-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2006 APPEARANCES: Complainant Nick Sachleben appeared on his own behalf. Mike Schern, Esq. represented Respondent Barbara Ann Sheele, doing business as Sun Star Heating and Aire. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Barbara Ann Sheele, doing business as Sun Star Heating and Aire (“Sun Star”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Sun Star is the holder of a Class C-39R license (No. 150312) issued by the Registrar of Contractors (“ROC”). Barbara Sheele is Sun Star’s owner and Michael Sheele is Sun Star’s qualifying party. 2. On or about May 21, 2005, after inquiring of the ROC and the Better Business Bureau, Complainant Nick Sachleben contracted with Sun Star for Sun Star to “install new 4 ton straight cool condensing unit 10 seer”. See Exhibit R1, page 2. The contract price was $2,792.00. Id. 3. On or about Sunday, May 22, 2005, Sun Star performed the installation of the new air conditioning unit. See Exhibit R1, page 3. Sun Star installed the unit in the same location as the previous unit, on the concrete pad that was installed by the home builder for this purpose. 4. On November 29, 2005, Mr. Sachleben contacted Sun Star to perform a service call on his heater. Sun Star replaced the glow plug igniter and the flame sensor and charged Mr. Sachleben $441.15 for such work. See Exhibit R1, page 4. 5. On December 4, 2005, Mr. Sachleben contacted Sun Star to perform a further service call on his heater. Sun Star replaced the fan limit control and charged Mr. Sachleben $305.61 for such work. See Exhibit R1, page 5. 6. On June 6, 2006, Mr. Sachleben contacted Sun Star to perform a service call on the air conditioning unit that Sun Star had installed the previous year. Sun Star installed a hard start unit and billed Mr. Sachleben $296.20 for this work. See Exhibit R1, page 6. Mr. Sachleben did not pay this invoice. 7. On June 8, 2006, Mr. Sachleben contacted Sun Star for another service call to the air conditioning unit. Sun Star installed a run capacitor and billed Mr. Sachleben $185.50 for this work. See Exhibit R1, page 7. Mr. Sachleben did not pay this invoice. 8. Sun Star erroneously charged Mr. Sachleben for the work performed on June 6 and 8, 2006, as the unit was under warranty. As such, on June 23, 2006, Sun Star sent a letter to Mr. Sachleben advising him of the error, waiving the service call charges, and apologizing for the inconvenience. 9. On June 27, 2006, Mr. Sachleben filed a complaint against Sun Star with the ROC alleging in pertinent part the following: I bought an air-conditioning unit that is one year old and it keeps breaking down. The company charges me several hundreds [of] dollars to fix it every time they come out for something that should work fine since it’s only one year old. I had three different air conditioning companies come out and take a look at the residential air-conditioning unit Sun Star installed. Their comments were all the same. 1) Sun Star Heating and Aire overcharged me for an EVCON (Coleman) unit, cost $2788. The unit is a 10 seer unit, four ton. I was overcharged by $1000. Sun Star should have also mentioned that 13 seer is the standard and not 10 seer. The unit installed would be equal to a Ford Pinto for $2788. Other companies are willing to install a brand new 13 seer, four ton American Standard for $2800, a Cadillac model. 2) Sun Star improperly installed the unit. Unit is facing the wrong way and actually should have minimum of three feet equidistant amount of free space around the unit. Their installation does not meet City code. 3) Sun Star charged me for parts when the unit is only one year old. . . . The compressor and parts have a five year warranty. 4) The unit is only one year old and should not need a hard start unit so soon. 5) The unit is only one year old and should not need a run cap so soon. 6) Tom Hicks, American Pride Air Conditioning, mentioned that the air conditioning unit will probably break down “again” within three months. . . . 7) Sun Star charged me a total of $746.74 to fix my heater. It broke down again after they fixed it twice. It eventually cost $1700 to get a brand new one from another company. . . Sun Star should have mentioned it would have only cost $1700 to get a new one. . . . . . . The remedy I’m seeking is that Sun Star take back the air conditioning unit after I have another installed from another company. Also, Sun Star give me $2000 and dismiss the additional charge total of $481.70 that I have not paid them yet. . . .

10. At hearing, Mr. Sachleben submitted photographs into evidence depicting the placement of the air conditioning unit. See Exhibits 1 through 15. Mr. Sachleben contended that the unit is too close to the window and walls of his house and that the unit should have a 10” clearance around the coil area. Mr. Sachleben submitted into evidence the installation manual for the air conditioning system that indicates that there should be a 10” clearance around the coil area. See Exhibit 20, page 3. 11. Mr. Sachleben acknowledged at hearing that he filed the instant complaint anticipating that the unit would break down again, yet as of the hearing date, the unit had not done so. Mr. Sachleben further acknowledged at hearing that his complaint regarding Sun Star’s over- charging him for the unit is no longer at issue, nor is the complaint regarding the charge for the parts as Sun Star acknowledged that the parts were under warranty and waived those charges. Mr. Sachleben further acknowledged that Sun Star had met all of the ROC's workmanship standards for air conditioning as set forth in the ROC's Workmanship Standards for Licensed Contractors, pages 4 and 5. See Exhibit R8. 12. Mr. Sachleben did not address at hearing, the complaint regarding the heater. 13. Mr. Sachleben acknowledged that the unit as installed by Sun Star was installed in the exact same location as the unit it was replacing, however, Mr. Sachleben asserted that Sun Star should have located the unit in his back yard rather than on the pad that had been installed for the unit. Mr. Sachleben testified that Sun Star should have re- routed the condensate lines, the electrical, and re-located the disconnect for the system to his rear yard. Notwithstanding such assertion, Mr. Sachleben acknowledged that he simply asked Sun Star to replace the old unit, and that it would have been a considerable additional expense to re-locate the unit to his rear yard. 14. Joel Jeffers of A A Gold Canyon Cooling, Inc., testified at hearing. Mr. Jeffers has 21 years of experience in the air conditioning industry. Mr. Jeffers opined that the unit was installed too close to the wall for service and circulation, and that the placement of the unit caused the need for a hard start kit because the unit requires more power due to the inadequate circulation. Mr. Jeffers acknowledged that it was probably the home builder that installed the pad for the unit. Mr. Jeffers testified that all the lines would have to be re-routed if the unit were to be re-located, and that this would be a considerable expense. Mr. Jeffers further acknowledged that he would have installed the unit in the same location that Sun Star installed the unit, but that he would have turned the unit. 15. Kevin Sheele, Sun Star’s technician, testified at hearing. Mr. Sheele has 30 years of experience in the air conditioning industry. Mr. Sheele testified that he performed the installation and the service calls at Mr. Sachleben’s home. Mr. Sheele credibly testified that if he turned the unit as Mr. Jeffers suggested, the unit would have been hanging off of the slab, rendering it not level and potentially unstable, and that the electrical lines, copper lines, etc. would have had to have been extended and exposed. Mr. Sheele further credibly testified that the previous unit had less clearance than the new unit.

16. The Administrative Law Judge finds, based upon the credible evidence of record, that Sun Star properly performed its work at Mr. Sachleben’s home. The fact that the unit does not have a 10” clearance is not attributable to Sun Star’s installation of the unit, but rather the home builder’s placement of the pad, the specific purpose of which is for the placement of an air conditioning unit. Had Mr. Sachleben wanted the unit relocated elsewhere, he should have made that request to Sun Star as opposed to contracting for the replacement of the unit. Mr. Sachleben would have then had to incur the additional expense of installing another pad and the re-routing of all of the lines to the unit. The fact that Mr. Sachleben has had additional time to ponder, research, and price compare various units and contractors, and now wishes to replace his unit with a “Cadillac” model in a different location, is irrelevant to this proceeding and has no bearing on Sun Star. CONCLUSIONS OF LAW In this proceeding, Mr. Sachleben bears the burden to prove, by a preponderance of the evidence, that Sun Star is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), and/or (A)(7) as charged by the ROC in its August 29, 2006 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Mr. Sachleben has failed to meet his burden of proof as to all three of the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . . which is prejudicial to another without consent . . .” The credible evidence of record established that Sun Star installed the replacement unit in the exact location as the previous unit and in the exact location that an air conditioning unit was intended to be installed. Mr. Jeffers, Mr. Sachleben’s own witness, testified that he would have installed the unit on the pad, as well. Further, Mr. Sachleben failed to demonstrate any prejudice to him by such placement. Therefore, the Administrative Law Judge concludes that Sun Star is not in violation of A.R.S. § 32-1154(A)(2). 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 Sun Star with a violation of 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 any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible evidence of record established that Sun Star properly installed the unit, given the location of the pad and the previous unit, and given that the parties contracted for the replacement of the unit, not the installation and re-location of the unit. Further, Mr. Sachleben acknowledged that the unit is properly functioning and has been since the last service call on June 8, 2006. Therefore, the Administrative Law Judge concludes that Sun Star is not in violation of A.R.S. § 32-1154(A)(3). 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, based upon the credible evidence of record, that Sun Star did not commit any wrongful acts that substantially injured Mr. Sachleben. Therefore, the Administrative Law Judge concludes that Mr. Sachleben did not establish that Sun Star violated A.R.S. § 32- 1154(A)(7). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Sun Star’s license. The ROC’s Citation in Case Number M06-2579, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Sun Star’s license, and that the Citation issued in Case Number M06-2579, together with the Complaint upon which it is based, be dismissed. 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 will be 40 days from the date of that certification.

Done this day, January 3, 2007

______________________________________ Sondra J. Vanella Administrative Law Judge

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

Fidelis V. Garcia, Acting Director Registrar of Contractors 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