ALJDEC decisions subject to certification as final

07F-3023-ROC · Registrar of Contractors · 2008-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 30, 2007 at 1:30 p.m. APPEARANCES: Complainant Paul A. Costello appeared on his own behalf; Respondent Sierra International Inc. dba Sierra Air Conditioning and Heating appeared through Keith Hefner, its President. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On October 18, 1990, the Arizona Registrar of Contractors issued License No. ROC088002, Class C-39R for air conditioning and refrigeration to Respondent Sierra International Inc. dba Sierra Air Conditioning and Heating, a corporation. 2. On July 18, 2007, the Registrar received Complainant Paul A. Costello’s complaint against Respondent’s license. Complainant attached a letter to his complaint, which described its basis, as follows: 6/19/06 Sierra did a spring tune up on my AC unit. I was satisfied and no problems.

4/07 I called Sierra to come and do a spring tune on my AC unit.

4/10/07 Sierra’s tune up man showed up and did his thing. He told my wife who was here alone as I was away helping my daughter who is building a home, that the unit was good. But it may need some work, he gave my wife a company card and his cell phone number on the back. He also told her to call him and not the company as he could save her money on repairs.

5/07 I called Sierra to tell them that I was not happy with a person who did the tune up giving my wife a card telling her to call him not the company. I spoke to the owner and told him that I was not comfortable with this prediction of future problems. He asked for cell phone number left with my wife he said it was one of his numbers and he asked how the unit was running, I said fine. I asked him if he could send someone to check the unit as it was not that hot yet and I was concerned of the coming summer heat. He told [sic] he would not but if any thing went wrong with in a month he would do something.

6/15/07 The day before the AC unit would not shut off and the temperature in the house was above 80, outside temp 110. I did not trust calling Sierra because of the card cel phone prediction. I called the Tri-City who installed the unit their man Bryan came and found the puron low, discharge pressure 330 should be 400, suction pressure 78 should be 125. Bryan said he had to do a leak test check before he could add puron, no leaks were found. I called Sierra and spoke to Keith, he asked me to fax the report to him. He said he spoke to his employee and they would not do anything. I informed that I would then take this to all consumer agencies.

My reasons for this action are two. #1 recover the $237.39 paid to Tri-City. #2 To stop the people who frighten older citizens of future problems after they say the unit is good. The compressor is 5 years old, and I am nearing 75.

3. Complainant also attached to his complaint a copy of Respondent’s business card with a handwritten number on the back and an invoice from Tri-City Mechanical dated 6-15-07 for $237.39. Of that amount, $89.00 was for the residential diagnosis. The work performed was as follows: Found unit low in puron. Customer says Sierra refrigeration was out 1 month found no leaks. Pressures are suspiciously close to what you’d want from Freon. Added 3 lbs puron to bring unit back to pressure. (indoor coil is clear.)

4. The Registrar referred the complaint to Respondent for its immediate attention. 5. On June 28, 2007, the Registrar received Respondent’s president’s response, in relevant part as follows: In reviewing Mr. Costello’s complaint I find no wrongdoing on our behalf. Mr. Costello stated in his comments that the unit was running fine when our tech left his place of residence on 4/10/2007, after a $42.00 tune up, also with recommendations for two parts that would help protect and ease the start-up of his system. On 5/24/2007 over a month later Mr. Costello called with a concern about the two parts our tech recommended, and the General Mgr. Kelton Francis informed him that these parts were only to protect and ease the start-up of the system especially during the monsoon season. Due to his concerns Kelton gave him a number that Mr. Costello could reach him at if he had any more questions or any future problems. Kelton also stated that he would send a tech out at no charge if he had an issue with his system up to 90 days.

Mr. Costello called another company to come out over two months later when he had an issue with his system. Mr. Costello took it upon himself at his expense; after being informed that we would come out at no charge per the 5/24 conversation and had another company come out instead.

We deliver a 100% satisfaction to our customers; we were not given the opportunity to fulfill this service. Mr. Costello elected to incur this expense to himself from the other company he called.

We only did a service check and if he is not happy with the service check then we will be more than happy to refund his $42.00.

6. On July 3, 2007, the Registrar received Complainant’s request for hearing because, “[i]n reading the response from Sierra, I find that the facts are not as I recall.” 7. On September 27, 2007, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(2) and (7). 8. On October 4, 2007, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any violation and again offered to return $42.00 to Complainant. 9. The Registrar referred the matter to the Office of Administrative Hearings and issued a Notice of Hearing in due course. 10. A hearing was held on January 30, 2007. Complainant testified on his own behalf and had admitted into evidence seven exhibits. Complainant again declined to accept Respondent’s officer to refund the $42.00 cost of the tune-up. Respondent’s president testified on its behalf and had admitted into evidence one exhibit. 11. Complainant testified consistently with his complaint. He also testified that his wife had told him that Respondent’s employee Billy on April 10, 2007 had said that the unit was “littered and in terrible condition,” which offended him because, before the inspection, he had vacuumed the unit. His wife also told him that Billy had said to call him, not the company. 12. Complainant also testified that Tri-State had to put three pounds of puron into the unit. Bryan, the Tri-State employee who had serviced the unit, had told him that he had been “stiffed” by Respondent. 13. Complainant also testified that his wife later complained that her bedroom was too hot. He found three dampers closed. His wife told him that Billy had said he would adjust the dampers. 14. Complainant testified that, after Tri-State’s repairs, the air conditioner continued working throughout the summer of 2007. 15. Both parties had admitted into evidence a copy of Respondent’s April 10, 2007 invoice for $42.00 for a tune-up. The invoice showed that the technician recommended that Complainant install a “pre-start relay” and surge protector on the air conditioning unit. 16. Respondent’s president Mr. Hefner testified that employees are encouraged to and frequently give their personal cell numbers to customers for service calls. Billy was still working for Respondent. 17. Mr. Hefner testified that the April 10, 2007 invoice shows a 20° temperature split, which shows the system was working correctly. 18. Mr. Hefner testified that Respondent warrants a system for 30 days after a tune up. Respondent extended the warranty to 90 days when Complainant called in May 2007. But Complainant still chose to call another contractor, which voids Respondent’s warranty. 19. Mr. Hefner testified that he was concerned about Tri-State’s invoice. It, like Respondent, found no leaks in the system. But Tri-State still found the system needed puron. Mr. Hefner testified that the system is hermetically sealed; it cannot lose puron absent a leak. CONCLUSIONS OF LAW 1. This matter lies with the Registrar’s jurisdiction.[1] 2. Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] 3. Neither Complainant’s wife nor the Tri-State technician testified at the hearing. Both Complainant’s wife’s remarks to him and the Tri-State technician’s remarks to Complainant and on the invoice are hearsay.[5] Although hearsay may be admitted in an administrative hearing,[6] it should not be relied upon if it is unreliable or not the kind of evidence upon which reasonable persons would rely in serious matters.[7] Complainant’s wife has no expertise in air conditioning repair. The Tri-State technician was Respondent’s business competitor. Therefore, Complainant’s wife’s alleged remarks to him about the quality of Respondent’s service call and the Tri-State’s technician’s remarks on the invoice about his suspicions about Respondent’s tune-up service are not the kind evidence on which reasonable persons would rely in serious matters. 4. Unfortunately, in the summer heat of Arizona, air conditioning units sometime malfunction, even absent wrongdoing by an air conditioning technician who inspects or services the unit. Respondent did not warrant that Complainant’s air conditioner would function through the summer. Although Respondent did extend its warranty, Complainant voided the warranty by calling in Tri-State to make repairs. 5. Complainant therefore did not bear his burden of proof to establish that Respondent violated A.R.S. § 32-1154(A)(2)[8] and (7)[9] in its tune up on April 10, 2007 or in its subsequent interactions with Complainant. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss Case No. 07-3023 against Respondent Sierra International Inc. dba Sierra Air Conditioning and Heating’s License No. 088002, Class C-39R. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, February 4, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of February, 2008, to:

Registrar of Contractors Fidelis V. Garcia, Director 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________ ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] See Ariz. R. Evid. 801. Hearsay is a statement made outside the hearing that is offered to prove the truth of the matter asserted. [6] See A.R.S. § 41-1092.07(F)(1). [7] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981). [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

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