ALJDEC decisions subject to certification as final

06F-T0268-ROC · Registrar of Contractors · 2006-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 22nd, 2006; 9:00 a.m. APPEARANCES: Complainants, Mr. Jose and Ms. Elizabeth Trejo, represented themselves. Respondent, Sienna Real Estate & Development, LLC, was represented by Mr. Frank Martinez, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent herein, Sienna Real Estate & Development, LLC, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class KB-02 License number 180597. 2. Complainants, Mr. Jose and Ms. Elizabeth Trejo, on or about April 9th, 2004, purchased their new residence which Respondent had constructed. They took possession of their new home June 22nd, 2005. The home passed all inspections prior to Complainants taking occupation. 3. The air conditioning unit broke down a few weeks after Complainants moved into their home. Respondent performed some repair work. 4. Initially, Complainants were receiving bills from the electric company for zero dollars and cents. Then, electric bills started arriving for extremely high amounts of money, i.e. $174.55 for 11 days of service; $437.73 for 31 days of service, and $540.62 for 32 days of service. These bills, and a late fee of $11.53 imposed while Respondent was refusing to reimburse Complainants, totaled $1,164.43. 5. Complainants were able to eliminate the possibility of any problem with the meter. Complainants discovered through the repair work of another appropriately licensed contractor that the problem had been that the air conditioning unit had been incorrectly wired by the Respondent’s technician. The unit’s heater and air conditioner were running simultaneously, and had been for some time. 6. Respondent has refused to reimburse Complainants any portion of their exorbitant electric bills, on the grounds that there was nothing wrong with the installation, and that there is no way to determine a sum certain over and above what the bills would have been for normal amounts of electrical usage. 7. Complainants, however, were able to ascertain this amount with a reasonable degree of certainty, using the calculations performed by their electric company. Trico Electric performed a residential energy analysis based on the house and the electric fixtures in it. Based on this analysis Complainants produced credible evidence that the Respondent’s defective installation of the unit resulted in excessive billing to Complainants in the amount of $833.15. Respondent should be held responsible for this amount. 8. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, and 3, (namely A.A.C. R4-9-108, Workmanship Standards). 3. The preponderance of credible evidence proved that Respondent violated A.R.S. 32-1154.2 and 3 by the defective installation of the air conditioning unit. 4. Respondent’s refusal to make reasonable restitution to Complainants was a violation of A.R.S. 32-1154.A.7, as a wrongful act. 5. A.R.S. 32-1156.01 allows an Administrative Law Judge to recommend that a licensee provide restitution to a person who is injured by an action of the licensee. In the facts of this case, a reasonable restitution to be ordered would be $833.15, an amount representing the excessive billing incurred by Complainants due to the defective installation of their unit.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class KB-02 License number 180597 be suspended until the Registrar receives written proof that Respondent has made restitution to the Complainants in the amount of $833.15. It is further recommended that if the Respondent makes the aforesaid restitution on or before the effective date of this Order (40 days after the date of service shown by the Registrar’s certification on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint No. T06-0268 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, March 28th, 2006.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, 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 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488