ALJDEC decisions subject to certification as final

07F-F0190-ROC · Registrar of Contractors · 2008-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2008 APPEARANCES: The Complainant represented himself. Jonathan Collins, Esq., appeared on behalf of the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Based on the evidence of record, the following findings are submitted. Findings of Fact 1. On September 29, 2005, the Respondent submitted a proposal to the Complainant to replace the Complainant’s existing three ton gas package air conditioning unit with a three ton heat pump, at a rental unit owned by the Complainant in Ashfork, Arizona. 2. The proposal included a 10 year compressor, parts, labor and workmanship warranty subject to the proposal being withdrawn by the Respondent within 30 days. 3. The Complainant did not accept the proposal until on or about November 3, 2005, and the unit was installed on November 7, 2005[1]. The Complainant paid the Respondent $3,100.00 in cash. The Complainant also paid $213.00 to have the unit put into place on the roof, by a crane. 4. By letter claimed to have been given to the Complainant on November 7, 2005, the Respondent amended the warranty to 10 years for the compressor, five years on parts and one year on labor and workmanship[2]. 5. On or about December 5, 2005, the Complainant contacted the Respondent because of problems with the heating portion of the unit. The Respondent sent a technician to look at the problem and determined that a circuit breaker had burned, and various parts of the heat pump had also been damaged (circuit board, contactor, fan motor etc.)[3] The circuit breaker and heat pump parts were replaced and the heating portion of the heat pump was rendered operable. According to the Respondent, low voltage thermostat wiring needed to be properly connected in order to make switching between heating and air conditioning functional. The Respondent told the Complainant this would cost an additional $130.00. The Respondent testified the Complainant did not want to pay for this wiring. The Complainant did not pay the charge ($216.17) for the work done in December, 2005 until June, 2006. The Respondent’s December 6, 2005 letter/invoice (Exhibit H) to the Complainant also stated that the Complainant needed to have an electrician “complete the house” and “there are lots of code violations in place”. 6. In June of 2006, the person renting the residence, identified as Marie Sheitler (Sheitler), contacted the Respondent to inform him that the air conditioning did not function. The Respondent switched the wiring to accommodate the air conditioning. This change in wiring now bypassed the heating function. The Respondent also performed some work at the Complainant’s residence. The Complainant paid the Respondent for the work which had been done at the rental unit in December, 2005, and for the work done at the Complainant’s residence. 7. In December, 2006, Sheitler moved from the rental. 8. On February 20, 2007, the new tenant, Karen Myers (Myers) moved into the rental. Shortly thereafter Myers contacted the Complainant and told him the heat did not work. 9. According to the Complainant, he tried to get the Respondent to address the problem by calling and leaving messages, but the Respondent would not correct the problem and asserted, it was not his fault. 10. On February 20, 2007, at the request of the Complainant, Hake’s Electric (license status unknown) examined the AC/heating system “Checked all possible ways to operate the furnace immediately without changing components or wiring”, and concluded “Not getting 240 volts from control board to low voltage transformer”. 11. On March 1, 2007, the Complainant had Custom Air Concepts (Custom Air) check the furnace system. It determined there was no low voltage problem, but that the thermostat wiring was incorrect and the transformer was blown. Custom Air installed a new thermostat wire, new transformer and control board and a two stage heat and cool thermostat. The total charge was $560.48.[4] 12. A March 28, 2007 letter from Arizona Public Service indicated a test at the residence on March 6, 2007, had disclosed no power fluctuations or problems with the electrical service running to the house. 13. On or about June 11, 2007 Bassett Heating, Cooling, & Refrigeration (Bassett), performed additional work on the system. The bill was $915.56. A Bassett invoice dated August 10, 2007 was for an additional $549.65. Some of the work done by Bassett included obtaining a replacement compressor and evaporator coil under the manufacturer’s warranty, replacing the blower motor, and adding Freon. Bassett determined the low pressure switch had been bypassed which caused the compressor to run continually and to burn up and that the wiring was incorrect.[5] 14. The Respondent testified that he informed the Complainant in December, 2005 that it would cost $130.00 to properly wire the thermostat[6]. The Respondent testified the Complainant was unwilling to pay and the wiring bypassed the air conditioning until June, 2006, when the Respondent connected the wiring for the air conditioning but apparently bypassed the heating. It is unclear why the wiring was not properly connected by the Respondent at that time in light of the fact that the Complainant paid for the services performed by the Respondent in December, 2005, and presumably also paid to have the wiring rerouted in June, 2006. Conclusions of Law The Citation and Complaint alleges violation of A.R.S. §32- 1154(A)(1), abandonment, (A)(7), a wrongful act with substantial injury, and (A)(9), failure to complete a project for the price stated. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. For the reason stated in footnote one above, the Citation and Complaint against License No. 206848 should be dismissed. 5. With respect to License No. 212303, there is no evidence of a violation of (A)(1) or (A)(9). These counts should be dismissed without further discussion. The work was completed at the stated price. Whether the Respondent’s work met workmanship standards is another issue. The allegation was not charged nor was there an amendment to charge a violation under A.R.S. §32-1154(A)(3). However, the alleged poor workmanship and Respondent’s alleged failure to honor the warranty may be considered in the context of an (A)(7) issue. 6. The evidence shows that after the Respondent ‘s service call in June 2006, that Hake’s, Custom Air, and Bassett worked on the system. In light of this intervening work, it cannot be concluded that the multitude of problems with system are attributable to the Respondent so as to establish a violation of (A)(7). The failure of the Respondent to properly wire the thermostat for both air conditioning and heating rather than having to switch it back and forth was not fully explained. The evidence suggests the need for this may have been because the system had been “fried” by the faulty circuit breaker and therefore the Respondent would not have been liable under the warranty for the replacement of the wiring. 7. The only remaining issue is whether the Respondent violated (A)(7) because of its failure to respond to the Complainant’s request to check the unit in February, 2007 (within the statutory warranty period). The Respondent contends the Complainant was not willing to pay for the Respondent’s services. The Complainant contends the Respondent was obligated to service the unit under the two year warranty of the original proposal. The Respondent countered the warranty under the proposal was modified by the letter of November 7, 2005, which is the same day the unit was installed. Based on the evidence, it is concluded the letter was untimely and did not give notice prior to the installation of the unit that the original warranty was being withdrawn and modified.[7] This attempt to withdraw the warranty and failure to respond to the Complainant’s February, 2007 service request is considered a wrongful act. However, since the evidence is unclear as to what precisely caused the most recent failure(s) of the unit[8] resulting in the additional expenses to the Complainant, it cannot be concluded the Complainant has established by a preponderance of the competent evidence that the Complainant’s substantial injury is directly attributable to the Respondent’s acts or failure to act. Recommended Order It is recommended commencing the effective date of the Order[9] issued in this matter that the Citation and Complaint in Docket Nos. 07F-F0190- ROC and 07F-F0190W-ROC, be Dismissed

Done this day, March 14, 2008

______________________________________ Allen Reed Administrative Law Judge

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

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

By ___________________________

----------------------- [1] According to the ROC website, License No. 206848 was cancelled effective October 1, 2005, and therefore, absent unique circumstances not evident in this case, none of the work complained of can be attributed to that license. [2] The one year workmanship limitation is contrary to public policy A.R.S. §32-1155. [3] This evidence was not disputed and is therefore accepted as credible. [4] Part of the bill was for unrelated work on a water heater (Exhibit 4) [5] It is unexplained why Bassett required two service calls to make a determination of the various problems with the system The total of nearly $1,500.00 in invoiced costs to the Complainant in light of the compressor and evaporator coil warranty, is not itemized by the invoices. . [6] This assertion is not corroborated by Exhibit H which addresses wiring in a general way “You need to have an electrician go out”. [7] The evidence indicates a potential “bait and switch” on the warranty issue. [8] The evidence is mixed whether the problems with the unit (the substantial injury) were caused by faulty wiring at the Complainant’s home (circuit breaker or otherwise), by the installation, wiring or other work done by the Respondent, by work done by Hake’s or Bassett, or some other unspecified factor. In view of this it cannot be reasonably concluded the injury was the direct consequence of the Respondent’s action or inaction in this case. [9] Forty (40) days from the date of the Order or date of certification if certified by the Director of the Office of Administrative Hearings.

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