ALJDEC decisions subject to certification as final

09F-4253-ROC · Registrar of Contractors · 2009-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 14, 2009. APPEARANCES: Paul Morton appeared personally. Max Mechanical, Inc. was represented by its president and qualifying party, Ron Hamilton. 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. Max Mechanical, Inc. (“Respondent”) is the holder of License No. 133286, a Class C-39R contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 4, 2009, Paul Morton (“Complainant”) filed a written Complaint with the Registrar alleging statutory and regulatory violations by Respondent pertaining to service calls made by Respondent to Complainant’s residence. The service calls were to perform work on Complainant’s HVAC units. The Registrar designated the Complaint as Case No. 09-4253. 3. The Registrar issued a Citation and Complaint in Case No. 09-4253 alleging violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. 09-4253 to the Office of Administrative Hearings, an independent agency, for formal hearing. 5. On August 18, 2008, Respondent’s technician performed a service call at Complainant’s residence located in Scottsdale, Arizona. 6. Complainant’s residence had two Trane heat pump units. 7. On August 18, 2008, Respondent’s technician performed the following scope of work on Complainant’s units: “checked units both working good units are 4-5 years old Freon levels are good amp draws are below well limits.” 8. Respondent charged Complainant $109.90 for the August 18, 2008 service call, which Complainant paid by check to Respondent’s technician. 9. On October 13, 2008, Respondent performed another service call at Complainant’s residence. Upon inspecting the west unit, Respondent’s technician determined that the unit’s reversing valve and solenoid needed replacement. Complainant approved such work, which was performed by Respondent’s technician. 10. Respondent charged Complainant $724.96 for the October 13, 2008 service call, which Complainant paid by credit card to Respondent’s technician. 11. On November 7, 2008, Complainant telephoned Respondent to report a problem with his HVAC systems. In response to that call, Respondent’s president and qualifying party, Ron Hamilton, performed a service call at Complainant’s residence. 12. On November 7, 2008, Mr. Hamilton performed the following work at Complainant’s residence: Unit not cooling – service unit shows compressor mechanical failure / lock up / blown out – note- system has pieces of stuff all through, note –compressor replacement not recommended – may become expensive (very) – note service call will be taken off if you buy unit today.

13. Mr. Hamilton gave Complainant a written estimate for the following: a ½ ton Trane heat pump with complete installation and crane fees including tax for $3,470.61; 17 months same as cash financing, with the pricing reflecting a credit of $750.00 for work previously performed; and the option of a 10-year parts and labor warranty for $400.00. 14. Complainant felt he was being taken advantage of by Respondent and rejected its offer. 15. Complainant filed a complaint with the Better Business Bureau, which ultimately found no wrongdoing by Respondent. 16. In Complaint in Case No. 09-4253, Complainant seeks restitution for the money he paid to Respondent. 17. At the hearing, Complainant failed to present any credible evidence that Respondent failed to properly perform analysis and repairs for Complainant. 18. Respondent presented documentary evidence in the form of a letter dated May 21, 2009 from Dan Harden, a field representative for Trane. 19. Mr. Harden wrote the following analysis of the parties’ dispute: In October of 2008 Max Mechanical diagnosed a failure of the reversing valve. The valve was replaced at that time and the unit ran for approximately 30 days until Mr. Morton reported the unit was not working again. Upon inspection it was determined that the compressor failed. There is no test that could have been performed at that time that would predict a pending compressor failure.

The compressor was still under the Trane parts warranty. Because an extended labor warranty was not purchased from the installing dealer labor was not covered. Mr. Morton chose not to have Max Mechanical complete any repairs at that time.

Because it is impossible to accurately predict when a compressor will fail I feel it was a correct decision for Max Mechanical to replace the failed reversing valve.

Another consideration is the lack of any service history on the unit over the last 5 years. Trane recommends a minimum of once a year preventive maintenance to reduce premature failures of system components.

20. Respondent is found to have performed its service calls for Complainant’s units to workmanship standards. 21. Respondent did not commit any wrongful act resulting in substantial injury to 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 a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (7) and (3), as charged in the Citation and Complaint issued by the Registrar. The above Findings of Fact support this conclusion. 4. Respondent failed to sustain his burden of proving an entitlement to restitution in this matter. The above Findings of Fact support this conclusion. Therefore, the Administrative Law Judge declines to recommend restitution in this matter, pursuant to A.R.S. § 32-1156.01. RECOMMENDED ORDER The Citation and Complaint in Case No. 09-4253 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, October 30, 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