ALJDEC decisions subject to certification as final

07F-T0525-ROC · Registrar of Contractors · 2007-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 7th, 2007; 9:00 a.m. APPEARANCES: Complainant, Mr. Daniel Pita, represented himself. Respondent, Precision Heating and Cooling, Inc., was represented by Mr. Kevin Cerveri, President. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent, Precision Heating and Cooling, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-39 License number 169898. 2. Complainant, Mr. Daniel Pita is the owner of rental property located in Tucson, Arizona, and his Complaint concerns the Respondent’s installation and servicing of a heating and air conditioning unit at the rental property, which occurred in May, 2005. 3. The unit worked fine for several months, but in November, 2005, when the tenant began to use the unit for heating it did not function properly. Complainant contacted Respondent who promptly sent a service technician to the property. Respondent found the problem to be a wrench left inside the unit. Respondent removed the wrench, and the unit again functioned properly. 4. Complainant called Respondent a second time to service the unit in May, 2006, when the unit did not cool properly. Respondent promptly serviced the unit and it again began to function properly. 5. The third time Complainant contacted Respondent to service the unit and the events it prompted gave rise to this Complaint. Complainant called Respondent to service the air conditioner on September, 2006. Respondent’s technician came and looked at the air conditioner. He concluded that the compressor was bad. Respondent informed Complainant that the compressor needed to be replaced. As the compressor was still under manufacturer’s warranty, there would be no charge for the compressor, but the labor charge to replace the existing compressor with a new one would be between $700.00 and $800.00. 6. Complainant was unhappy to receive this news, and called the Respondent. The only two witnesses to testify as to the content of Complainant’s phone call to the Respondent’s secretary were Complainant and Respondent’s President. Complainant testified that the told the secretary to have the President call him back. The President testified he received no such message from his Secretary. 7. In either event, after the phone call, Complainant hired another heating and air conditioning contractor, TMCI Heating and Air Conditioning, to visit the property and troubleshoot. The third- party contractor’s technician decided that the problem was not with the compressor. Complainant hired that contractor to fix the air conditioner. TMCI serviced the unit and billed Complainant $1,255.16. A copy of the TMCI service order, work description, and invoice is in evidence. Complainant testified that the unit worked properly after having been serviced by TMCI. 8. Complainant filed the instant Complaint and seeks an order directing Respondent to make restitution in the amount of one-half the TMCI bill. 9. Respondent gave a copy of the TMCI service order, and work description to a factory representative from the air conditioning manufacturer. That representative took issue with the TMCI statements, and a written statement from the representative contradicting and questioning the opinions of the TMCI technician is in evidence. Also in evidence is Respondent’s copy of the manufacturer’s documents tending to disprove the need or even possibility of the unit having been serviced as described in the TMCI work description. 10. The weight of evidence as to what was wrong with the air conditioner and what work needed to be performed is fairly equal on both sides. Each party has a hearsay document written by a technician or a factory representative to support its position. The two documents call into question the accuracy of the other. 11. There is insufficient evidence to conclude that Respondent was given an adequate opportunity to correct the air conditioner before Complainant caused another contractor to work on it.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.7, and 9. 3. Complainant has brought this Complaint and therefore must carry the burden of proof. A.A.C. R2-19-119. The standard of proof is the preponderance of the evidence. See: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985).

4. There is less than a preponderance of evidence that Respondent violated A.R.S. 32-1154.A.7 or 9 in this case.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T07-0525, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days from the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days fro the date of that certification. Done this day, August 7th, 2007.

______________________________________ Grant Winston 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 ___________________________

-----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488