ALJDEC decisions subject to certification as final

09F-2712-ROC · Registrar of Contractors · 2009-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 14, 2009. APPEARANCES: Terrell Stickney appeared personally. Schmidt’s A.C. Service Co., L.L.C. was represented by its attorney, Thomas G. Luikens, Esq. 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. Schmidt’s A. C. Service Co., L.L.C. (“Respondent”) is the holder of License No. 195758, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 6, 2008, Terrell Stickney (“Complainant”) filed a written Complaint with the Registrar concerning an HVAC system installed by Respondent in a residence owned by Complainant. The Complaint is incorporated herein by reference. The Registrar designated the Complaint as Case No. 09-2712. 3. The subject residence is located at 37 W. Hillview, Mesa, Arizona. Complainant’s daughter and her six children reside at the residence. 4. In response to the filed Complaint, the Registrar’s assigned inspector at the time, Jack Clark, performed a jobsite inspection at the subject property on December 5, 2008. As a result of that inspection, Inspector Clark sent a letter dated December 24, 2008 to the parties advising them of his following determination: After completing the jobsite inspection, we have determined that your complaint should be closed for the following reason(s):

The homeowner has some responsibility to maintain the unit with new filters and clean ductwork. The complainant did not show that the contractor was contracted to upgrade the ductwork or that the contractor has failed to make appropriate repairs. (Emphasis in the original).

5. During the jobsite inspection, Complainant did not request Inspector Clark to inspect the existing ductwork for the unit. 6. Inspector Clark did not issue any corrective work order in this matter. 7. Inspector Clark maintained his notes taken during his investigation of the Complaint. 8. At the request of Complainant, the Registrar issued a Citation and Complaint in Case No. 09-2712 alleging violations by Respondent of A.R.S. § 32-1154(A) (2), (7), and (3), namely A.A.C. R4-9-108. 9. The Registrar forwarded Case No. 09-2712 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 10. Respondent installed a Ducane 3.5 HVAC unit on the subject property in April 2005. Such a unit is not self-cleaning; the unit requires periodic homeowner maintenance. 11. Respondent was not contracted to install new ductwork in the subject residence. 12. Case No. 09-2712 was reassigned to Inspector Ted Gerold.[1] Inspector Gerold testified that he had reviewed Inspector Clark’s notes and concurred with Inspector Clark’s findings. Inspector Gerold opined that there were no code violations or deficiencies in Respondent’s scope of work on the subject project. 13. Inspector Gerold noted that Complainant’s HVAC system lacked filters. 14. Respondent’s employee, Frank Loyd, testified that Respondent’s workers found the thermostat for the unit hanging off the wall with the cover missing. No filter was found in the system’s return. Supply registers were off the walls. Those conditions resulted in a lack of backpressure for the system. 15. Mr. Loyd stated that the unit’s dirty coils also cause problems for the unit. 16. Respondent has made appropriate service calls for warranty work for the HVAC system. 17. Complainant is found to have failed to properly maintain the HVAC system, resulting in the problems he complains about. 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. Complainant failed to sustain his burden of establishing that Respondent violated the provision of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar. Complainant failed to present credible evidence that Respondent deviated from manufacturer’s specifications for the installation of the HVAC unit. On the contrary, there was credible evidence that Respondent did not violate any code requirements. 4. Complainant failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. Inspector Gerold credibly testified that Respondent’s workmanship was not deficient. 5. Complainant failed to sustain his burden of establishing that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. The evidence of record does not support a conclusion that Respondent committed a wrongful act resulting in substantial injury to Complainant. RECOMMENDED ORDER The Citation and Complaint in Case No. 09-2712 shall be dismissed on the effective date of the Order entered in this matter. 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, September 2, 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 ___________________________

----------------------- [1] Inspector Jack Clark passed away earlier this year.

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

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