ALJDEC decisions subject to certification as final

07F-M0221-ROC · Registrar of Contractors · 2007-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 8, 2007 APPEARANCES: Complainant appeared on her own behalf and Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained Respondent to perform a service “check-up” on her air conditioner. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant testified that she received a phone call from Respondent, soliciting her business for a seasonal “check-up” for her air conditioner. The charge for the check-up was $39.00. She ultimately consented to this service. b. Information contained in the Registrar’s file in this matter shows that on or about May 6, 2006 Respondent performed the contracted service “check-up.” Complainant testified that Respondent’s serviceman found that her “fuse box” had been burnt and required replacement. c. Evidence of record showed that Complainant paid Respondent a total of $622.82 for all of the work performed by Respondent on May 6, 2006. According to the invoice from Respondent, which was found in the Register’s file, Complainant was charged the $39.95 for the “check-up,” $187.00 for a 60 amp fused disconnect, $180.00 for a complete coil service, and $185.00 for a “kick-start.” With taxes, the billing came to the $622.82 total. d. According to Complainant, sometime after Respondent completed the above-described work on the air conditioner, she heard a loud banging noise coming from the unit and she no longer had any air conditioning. Although Complainant indicated that the noise occurred one (1) month after the service work performed by Respondent, the evidence of record showed that it was two (2) months later when a subsequent contractor arrived at Complainant’s home to investigate the noise coming from her unit. e. According to Complainant, when she first heard the noise coming from her unit, which appears to be sometime in early July 2006, she initially called Respondent but Respondent advised that it would be approximately one (1) week before a serviceman could come out to her home. Notwithstanding the fact that this call for service was made in the middle of the summer, Complainant found the wait time to be unacceptable. She also testified that the people she spoke to on the phone from Respondent’s office were rude to her. f. Based on her unsatisfactory experience with Respondent’s phone personnel and what she believed was an unacceptable wait time for service, Complainant contacted Chas Roberts (“Roberts”) air conditioner company. When they checked out the unit, Roberts advised Complainant that they found that three (3) bolts had come off the motor and hit the fan blade. In addition, Roberts found that the disconnect fuses installed by Respondent were 60 amp fuses and the “nameplate” on the air conditioner indicated to use no greater than 50 amp fuses. g. Complainant also testified that the serviceman from Roberts advised her that Respondent had installed the disconnect box for the fuses on the wrong side of the unit. h. Complainant’s daughter, Christy, also appeared at the hearing and testified. According to Christy, Roberts advised that the “kick-start” installed by Respondent was unnecessary. However, there was no evidence presented that Roberts removed the “kick-start.” Christy testified that she believed Roberts did move the disconnect box. i. Complainant believes that Respondent sabotaged her unit, by loosening the bolts on her motor, which caused all of the damage to her unit. j. Complainant testified that she expended the total sum of $1,022.82 to Respondent and Roberts. She believes that she is entitled to some form of restitution from Respondent.

3. Uncontroverted evidence of record showed that Respondent installed the incorrect amp fuses for the fuse disconnect box and installed the fuse box on the wrong side of the unit. Installation of improper fuses and placement of the disconnect fuse box on the wrong side of the air conditioner is indicative of sloppy workmanship and, as such, is found to constitute substandard and unacceptable workmanship. In addition, said substandard workmanship is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Although Complainant believes that Respondent intentionally sabotaged her air conditioner, the evidence of record was insufficient to support such a finding.

5. Notwithstanding the fact that Complainant claims entitlement to some form of monetary damages for the work performed by Respondent, the Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate such a claim for monetary damages. In the event that Complainant continues to seek monetary damages against Respondent, then such a claim will have to be brought before a civil court of competent jurisdiction.

6. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense of mitigation.

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding Respondent and said notice two (2) matters which had been resolved or settled by Respondent after issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is properly deemed to be poor and thus, is viewed as a matter in aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-39R license of Respondent shall be placed on a period of disciplinary probation for ninety (90) days. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, January 16, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826