ALJDEC decisions subject to certification as final

07F-M1905-ROC · Registrar of Contractors · 2007-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 20 November 2007 APPEARANCES: Complainant: Steve Paulson. Respondent: James Postlethwait, Corporate Officer of Assured Air, Inc. Others: Ed Hall, witness for Complainant; Eric Good, Marketing Manager, Assured Air, Inc. ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant contacted Respondent to correct a leaky condensation line on his ground floor house heat pump condensor. Respondent sent Derek Gittings to conduct the repair. Mr. Gittings arrived on 13 September 2006 to make the repair. Mr. Gittings apparently also examined the home’s rooftop condenser unit. Complainant paid $39.45 for an “Initial Service Check-up”, which includes numerous heat pump system diagnostic checks, including ductwork, R-22 coolant pressure, electrical connections, motor lubrication, electrical connections and contacts, air volume draws, etc. 2. After Mr. Gittings departure, Complainant discovered the air conditioning system no longer worked, and wouldn’t even turn on. Mr. Gittings returned the next day to trouble-shoot the situation. Ultimately, Respondent’s personnel added R-22 to the heat pump system, and announced that Respondent needed a new fan. Complainant issued Respondent a check for $149.95, but quickly stopped payment on the check and called another contractor (Jewell Air) to look at the situation. 3. Jewell Air arrived on 20 September 2006, and discovered the heat pump air distribution fan had its power wires switched, causing the motor polarity to be reversed. Jewell Air also discovered the system to have too much R-22 in it, and bled some of it off. Repairs were complete in 30 minutes, and the system worked perfectly again. Complainant paid $165.00 to Jewell air, for which Complainant was reimbursed by Respondent. 4. Complainant iterated that he is not interested in obtaining monetary recompense or in having Respondent’s contractor’s license revoked or suspended; however, he is concerned about Respondent’s business practices, as he feels Mr. Gittings was incompetent to service heat pumps, and that Respondent’s sales personnel tried to sell him a fan he didn’t need. He further stated that his current out-of-pocket expenses in this case are $39.95, the cost of the “Check-up”. 5. Mr. Postelwaite stated Mr. Gittings left Respondent’s employ within three months of his being hired. Also, Dave Meyers, the individual who suggested Complainant purchase a new fan and Respondent’s operations manager for a year, was terminated from Respondent’s employ for embezzlement. Respondent has been in business for three years, and employs two installation crews and two service crews, totaling approximately 8 technicians.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The evidence adduced at hearing leads to the factual conclusion that Mr. Gittings, Respondent’s employee, somehow temporarily incapacitated (either deliberately or inadvertently) Complainant’s heat pump system during his “Initial Service Checkup” of 13 September 2006. Although the incapacitation was relatively easily corrected, this act of Respondent’s employee substantially injured Complainant in the amount of $39.95, the cost of the “Check-up”. The other injuries Complainant has sustained in this case (i.e., the cost of Jewell Air’s repairs) have already been recompensed by Respondent. 3. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32-1154(A), namely subsection (7), by a wrongful act that substantially injured Complainant.

RECOMMENDED DECISION In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that Respondent’s Class Complainant-39R license be suspended until the ROC receives proof adequate to the ROC that Respondent has paid Complainant restitution in the amount of $39.95, representing the cost of Respondent’s “Initial Service Check- up”. It is further recommended that if Respondent pays the said restitution on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. 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, December 10, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, 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