ALJDEC decisions subject to certification as final

07F-T1274-ROC · Registrar of Contractors · 2008-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2008, at 9:00 a.m. APPEARANCES: The Complainants appeared through their attorney, John Kuhnlein. The Respondent appeared through his attorney, Fred Hickle. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class C-39R License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a mini-split heat pump in the Complainants’ master suite. 3. Credible testimony and evidence, presented at hearing, established the new heat pump unit was intended to both cool and heat the Complainants’ master suite. 4. The Complainants discovered the new heat pump system failed to properly heat their master suite. The Complainants were very dissatisfied with the new heat pump unit and the Respondent’s failure to properly correct the new heat pump unit to perform its intended function despite their repeated requests that the Respondent do so. 5. When the Respondent failed to comply with the Complainants’ requests, the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 7. The assigned Agency Inspector moved to close the Complaint on the following basis: “I could not determine if there was a workmanship violation by the contractor, a test on the heating unit could not be performed due to the outside temperatures. I have no jurisdiction on the return of any money.” 8. The Complainants then requested an administrative hearing. 9. Credible testimony and evidence, presented at hearing, established the heat pump system adequately cools the Complainants’ master suite but fails to properly heat the Complainants’ master suite. 10. Credible testimony and evidence, presented at hearing, established the new mini-split heat pump system is inadequate for its intended purpose and incapable of properly heating the Complainants’ master suite. 11. Credible testimony and evidence, presented at hearing, established the Complainants failed to receive the benefit of their bargain with the Respondent. 12. The Respondent’s action, in installing a new heat pump system that is inadequate to fulfill its intended to purpose, is found to constitute a violation of applicable workmanship and industry standards. 13. The Respondent shall take whatever actions necessary to ensure that the Complainants master suite is properly cooled and heated. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class C-39R License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly performed whatever action necessary to ensure the Complainants’ master suite is properly heated and cooled. It is further recommended if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, July 11, 2008.

______________________________________ M. Douglas Administrative Law Judge

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

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

By ___________________________

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

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com