ALJDEC decisions subject to certification as final

06F-T0522-ROC · Registrar of Contractors · 2006-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The administrative hearing of these three consolidated matters is presently scheduled to convene on October 16th, 2006. On June 27th, 2006, Respondent in Case No. T06-0597, KX2 Holdings, LLC, d.b.a. Climatec Building Technologies Group (“Climatec”), filed a motion to dismiss the Complaint against it. The motion was accompanied by a memorandum of supporting facts and law, and documentary exhibits. Neither of the other two Respondents, nor Complainant, filed any response or objection to the motion contesting any factual assertion, legal argument, or documentary authenticity contained in Climatec’s motion to dismiss. The pertinent facts are fairly simple. Complainant, Desert Sun Management, LLC (“DSM”), is a company which, relative to these cases, owns physicians’ offices in Tucson. DSM contracted with the Respondent in Case No T06-0478, Chestnut Construction Corporation (“Chestnut”), for the purchase and installation of an HVAC system in these offices. Chestnut subcontracted with Respondent in Case No. T06-0522, Lee Mechanical Contracting, Inc. (“Lee”), a licensed HVAC contractor, for Lee to perform the work. Lee purchased the HVAC system from the moving party, Climatec. Climatec sold an HVAC system that was compatible with the specifications provided by DSM’s engineer and the other two Respondents. Climatec did not perform any installation of the system, and to the extent of its performance was merely a materialman. Following installation of the HVAC system, DSM felt that the system did not adequately cool the office space. DSM filed the two Complaints against Chestnut and Lee. Then, DSM filed a third Complaint against Climatec. The Complaint against Climatec alleges that the system does not adequately perform. It further alleges that Climatec performed a quarterly inspection of the system, and that there were a leaking pump and malfunctioning exhaust fan that were supposed to have been fixed. Even DSM mentioned in the Complaint against Climatec that the malfunctioning fan was a warranty item to be addressed by Lee, not Climatec. Climatec, however, corrected the leaking pump and a malfunctioning exhaust fan. This action was documented by Climatec in a letter to DSM dated March 20th, 2006. Thus, based on the undisputed facts disclosed in the motion and supporting documents, Climatec did nothing in this case other than sell the HVAC equipment that was specified to it by those responsible for its design and later performed some corrective work that was arguably not its responsibility, but in any event was properly performed. No Corrective Work Order was ever issued by the Registrar’s assigned Inspector in Case No. T06-0597. If the system is not performing adequately for the office space where it was installed such misfortune cannot be blamed on Climatec who sold a system meeting the specifications presented to it. Climatec was not even acting as a contractor in that instance. See: A.R.S. 32-1121.A.4. And the slight repair work it performed later is not being alleged as defective in any way, and was not found by the assigned agency Inspector to be defective. No allegation is being made against Climatec that the materials were defective, only that the system was not adequate, or large enough, to sufficiently cool the office space. Wherefore, it is hereby recommended that Case No T06-0597 be dismissed.

Done this day, July 11th , 2006.

______________________________________ Grant Winston Administrative Law Judge

Copy mailed this ____ day of ______________, 2006 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