ALJDEC decisions subject to certification as final

08F-G0277-ROC · Registrar of Contractors · 2008-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2008. APPEARANCES: Paul Aratico appeared personally. Monterrey Refrigeration Corporation, doing business as Wholesale Air Conditioning, was represented by its president and qualifying party, James Abraham. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. Monterey Refrigeration Corporation, doing business as Wholesale Air Conditioning (“Respondent”), is the holder of License No. 111898, a Class C-39R contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about February 23, 2007, Paul Aratico (“Complainant”) met with Respondent’s president and qualifying party, James Abraham, concerning Complainant’s existing heat pump. Complainant’s then existing unit was cold, but it had soft pressure. 3. Complainant contacted Respondent after seeing its advertisement for “scratch and dent” units for $1,100.00 to $1,500.00. 4. Mr. Abraham told Complainant that he needed a new unit due to the size of his residence. He offered Complainant a new five ton, 13 seer, Goodman unit installed for $2,900.00. 5. Mr. Abraham had told Complainant that the Goodman unit was a good product. 6. Respondent’s proposed scope of work included retrofitting the new unit to the existing stand, thermostat and disconnect. 7. Complainant accepted Respondent’s offer. He paid Respondent a down payment of $200.00, with the balance of $2,700.00 due upon completion. 8. Respondent’s written proposal to Complainant listed its name as Monterey Air Conditioning, which is not the name appearing on its contracting license number. In addition, Respondent’s written proposal did not list its contracting license number issued by the Registrar. 9. Respondent removed Complainant’s existing unit from the roof and the property. Respondent no longer has that unit. 10. Respondent installed the new unit on Complainant’s roof. There were problems with the new unit’s interior insulation. After trying to repair the insulation, Respondent used a rock as a temporary repair in order to get the unit running on the installation date. Respondent also used a rock as a temporary repair to the lopsided unit. 11. After several service calls by Respondent while attempting to repair the new unit, Respondent advised Complainant that there was a manufacturer’s defect with the unit’s insulation. Respondent had tried to remedy the defect by using a water-proof glue to keep the insulation in place. When that became unsuccessful, Respondent tried to keep the insulation in place by using screws. 12. Respondent suggested that Complainant contact Goodman for a new unit under the manufacturer’s warranty. 13. Complainant paid Respondent the balance of $2,700.00. 14. Complainant did contact Goodman, who sent out Foster Mechanical to perform a service call for Complainant’s new unit. 15. On or about August 23, 2007, Foster Mechanical performed a service call. Foster Mechanical’s service order invoice contained the following comments:

(a/c unit was not sealed properly) line voltage whip was not replaced as said nor where [sic] fuses replaced. a/c unit is supported by a rock and elbow. Should be supported by stand.

16. Foster Mechanical’s invoice described the following work performed during the service call: Replaced old stat wire w/ new stat wire. Secured insulation in R/A cabinet w/ sheet metal. Condensation lines not trapped properly used p trap vent + coupler and to [sic] 90°s of pvc fittings. Re-tightened lugs on disconnect. Found water in blower cabinet leak at bottom of unit. Checked Freon, ok.

17. Foster Mechanical invoiced Goodman for the cost of the service call. 18. Respondent’s work is found to have been below minimum workmanship standards 19. Respondent’s deficient workmanship is a wrongful act that substantially injured Complainant. 20. A review of the Registrar’s public electronic records reveals that there is one open complaint and three resolved/settled/withdrawn complaints against Respondent’s contracting license.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(B). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as alleged in the Citation and Complaint issued by the Registrar. Respondent’s workmanship did not meet minimum workmanship standards. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as alleged in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship caused substantial injury to Complainant. 5. Respondent violated the provisions of A.R.S. § 32-1154(A)(15), as alleged in the Citation and Complaint issued by the Registrar. Respondent’s written proposal to Complainant did not contain Respondent’s name as it appears on its contracting license. 6. Respondent violated the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32-1124(B), as alleged in the Citation and Complaint issued by the Registrar. Respondent failed to properly list its contracting license number in its written proposal to Complainant. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32-1158, as alleged in the Citation and Complaint issued by the Registrar. Complainant did not address this allegation at the hearing. The Citation and Complaint do not give a factual basis for the allegation.

RECOMMENDED ORDER Respondent’s License No. 111898 shall be suspended on the effective date of the Order entered in Case No. G08-0277 until the Registrar receives written proof, and accepts such proof, that Respondent has fully complied with the following conditions: 1. Respondent shall remove and replace Complainant’s HVAC unit in a workmanlike manner at Respondent’s sole cost and expense. The new unit shall be a five-ton with a 13 seer rating. 2. Respondent shall provide evidence to the Registrar that it is in full compliance with the requirements of A.R.S. § 32-1124(B).

If Respondent provides acceptable proof to the Registrar that it fully satisfied the above conditions on or before the effective date of the Order entered in Case No. G08-0277, then the above-provided license suspension shall not take place, but instead Respondent’s contracting license shall be placed on disciplinary probation for a period of 90 days commencing on the effective date of the Order entered in Case No. G08-0277 or on the date on which notice of Respondent’s proper compliance with the Order entered in Case No. G08-0277 is filed and approved by the Registrar, which ever is later. In addition to the above-provided penalties, any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided 24 month period and only if no claims are then pending. 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 will be 40 days from the date of that certification.

Done this day, November 20, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Armando Contreras, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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