ALJDEC decisions subject to certification as final

09F-1849-ROC · Registrar of Contractors · 2009-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2009. APPEARANCES: Dane Gudex appeared personally. Air Quality Consulting, Inc. was represented by its president and qualifying party, Jimmy W. Mullin. 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. Air Quality Consultants, Inc. (“Respondent”) is the holder of License No. 225325, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Dane Gudex (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent. Complainant contends that Respondent breached the service warranty on an HVAC unit it had installed in 2007 at Complainant’s residence located in Apache Junction, Arizona. 3. The Registrar designated Complainant’s Complaint as Case No. 09-1849. 4. The Registrar issued a Citation and Complaint in Case No. 09-1849 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 5. The Registrar forwarded Case No. 09-1849 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. In July 2008, Complainant’s air conditioning unit stopped working. Complainant called Respondent, who made a service call the same day. 7. Upon inspecting the unit, Respondent discovered that the air conditioning unit needed a part that was not on the service vehicle. Rather than leaving Complainant without air conditioning that evening until the proper part could be obtained and installed, Respondent’s technician placed a different size part in the unit so that the air conditioning would temporarily operate for Complainant. The technician did not expect the repair to be a permanent one, but expected it to provide air conditioning until the proper part could be obtained. 8. The next morning Complainant’s air conditioning stopped working. He telephoned Respondent twice before noon, but received no return call. 9. Later in the afternoon, Respondent’s technician returned Complainant’s telephone call. The technician had the correct size part on his service vehicle. Complainant informed Respondent’s technician that he had someone else make a service call and had the unit fixed. 10. Complainant paid $180.00 for the correct part and installation of it to the subsequent contractor. Complainant seeks compensation for that payment from Respondent. However, the Registrar’s disciplinary process is not the appropriate forum for litigating compensatory damages. 11. There is no evidence that the subsequent contractor was a properly licensed HVAC contractor. 12. Respondent is not found to have failed to provide warranty work to Complainant. Given the high ambient temperatures and having no air conditioning, Complainant understandably wanted Respondent to perform the warranty work quickly in order to restore cool air inside his home. However, Respondent’s response time is not found to have been unreasonable, under the circumstances. 13. Respondent is found not to have committed any wrongful or fraudulent acts that substantially injured Complainant. 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(A). 3. The evidence of record does not support the conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. 4. The evidence of record does not support the conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. There is no factual basis to support this allegation. RECOMMENDED ORDER The Citation and Complaint in Case No. 09-1849 shall be dismissed on the effective date of the Order entered in that Case. 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, August 10, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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