ALJDEC decisions subject to certification as final

09F-T0181-ROC · Registrar of Contractors · 2009-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 2009 at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its authorized representative, Robert DiFusco. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and 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 new HVAC system on the Complainant’s residence. 3. The Complainant experienced repeated problems with the new HVAC system and the Respondent repeatedly attempted to correct the problems. 4. When the Respondent was unable to correct the HVAC unit to her satisfaction, the Complainant retained an alternative licensed contractor to correct the HVAC system. 5. The Complainant then filed a formal complaint against the Respondent with the Registrar of Contractors. 6. The formal Complaint alleged that the new HVAC unit had broken twice and was noisy and vibrated and that the Complainant wanted reimbursement for her cost of repairing the unit in the sum of $616.03. 7. Based upon the fact that the Complainant was seeking monetary restitution and since the problems with the HVAC unit had been corrected by an alternative contractor no onsite inspection took place. 8. There was no dispute that the manufactured HVAC unit had repeatedly failed. 9. Credible testimony and evidence established that the repeated failures were due to manufacturing defects in the HVAC unit rather than poor workmanship by the Respondent. 10. The February 2009 Workmanship Standards for Licensed Contractors provides as follows: Defects in appliances and plumbing and electrical fixtures properly installed by the contractor should be limited to the manufactures’ warranty. 11. The credible evidence of record is insufficient and fails to support a finding for an order of restitution for the Complainant’s expenses in correcting the manufacture’s defects in Complainant’s HVAC system. 12. Credible testimony and evidence established that the noise level of the operating HVAC unit is partially due to an improperly installed duct work connection. There was no dispute that this area was the Respondent’s work. The Respondent shall properly correct the HVAC connection to the Complainant’s duct work. 13. There was no credible evidence of abandonment or refusal to perform by the Respondent. 14. There was no credible evidence of a wrongful or fraudulent act by the Respondent. CONCLUSIONS OF LAW 1. The credible evidence of record established a violation 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). 2. The credible evidence of record failed to support a finding of a violation of the provisions of A.R.S. § 32-1154 (A) (1) (Abandonment or failure to perform) and A.R.S. § 32-1154 (A) (7) (Wrongful or fraudulent act).

RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class C-39R License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly corrected the HVAC connection to the duct work in the Complainant’s residence. It is further recommended that 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 that 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, October 13, 2009.

______________________________________ M. Douglas 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 ___________________________ -----------------------

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