ALJDEC decisions subject to certification as final

2010A-102263723-ROC · Registrar of Contractors · 2010-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 10, 2010 APPEARANCES: Lucy G. Vitale appeared personally and was represented by her attorney, Christina M. Vitale, Esq. Rite Way Ventilating Co. was represented by its authorized representative, Richard Walter. 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. Rite Way Ventilating, Co. (“Rite”) is the holder of License No. 025104, a Class C-39R contracting license, and License No. 235235, a Class C-39R contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On October 26, 2009, Lucy G. Vitale (“Ms. Vitale”) filed a written Complaint with the Registrar alleging deficient workmanship by Rite during a service call on November 27, 2007, at Ms. Vitale’s residence located at 8381 E. Hillwood Ct., Tucson, Arizona. 3. The Registrar designated Ms. Vitale’s Complaint as Case No. 2010- 2261063 (formerly T10-0226) against Rite’s License No. 025104, and Case No. 2010-[number redacted] (formerly T10-0226W) against Rite’s License No. 235235. 4. In her Complaint, Ms. Vitale stated the following outcome she sought in this dispute: Settlement: For No Service (Not Even a Visual Check) to the Furnace, for Burning the Cells in the Heat Exchanger Without First Inspecting the Unit, for Insisting that Repairs were Not Possible, and for Owner’s Untruthful and Accusatory Phone Response to a Resolution: A Full refund of the $78.00 No-Service- Rendered Fee which Customer paid under duress so as the Technician would agree to leave, and a Refund (Partial, if Full Refund Not Achievable) of the $1,682.72 cost to repair the damages which the RiteWay [sic]Technician caused by his ignorance and incompetence in running the Furnace without first cleaning the Ignition Ports and Burners of the usual accumulated rust and inspecting the Heat Exchanger.

5. The Registrar issued a Citation and Complaint against License Nos. 025104 and 235235 alleging violations by Rite of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108. 6. The Registrar forwarded Case Nos. 2010-2261063 and 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. 7. Rite originally installed Ms. Vitale’s Carrier gas HVAC unit in her residence in 1980. 8. On November 27, 2007, Rite sent technician Matt Walter to Ms. Vitale’s residence to perform an annual routine maintenance inspection of Ms. Vitale’s HVAC system at her request. In recent prior years, Ms. Vitale had another contractor perform such inspections. 9. Upon arriving at Ms. Vitale’s residence, Mr. Walter asked her the location of the unit’s thermostat. Mr. Walter wanted to be sure that the HVAC system was operational. 10. After locating the thermostat, Mr. Walter adjusted the thermostat to turn the unit on. Shorty thereafter, there was a delayed ignition, which the Carrier User’s Informational Manual for the Operation and Maintenance of Your New Gas-Fired Furnace (“Carrier Owner’s Manual”) describes as follows: “an alarmingly loud sound” caused by “[a]n accumulation of dirt, soot, or rust can mean a loss of efficiency and unsafe performance. Buildups on the burners can cause faulty firing.” 11. After the delayed ignition, Mr. Walter turned the unit off at the thermostat and performed an inspection of Ms. Vitale’s furnace. Mr. Walter performed an inspection utilizing a Cracked Heat Exchange Checklist, which he completed as follows: 1. Visual check with light and mirror? Yes 2. Any cracks? Yes 3. Any warpage? No But full of rust 4. Performed CO heat exchanger test? Yes 5. Was the customer shown the cracks or areas of concern? No 6. Is there a change in the flame when the blower comes on? Yes 7. Is the heat exchanger leaking fumes? Yes

Cracked heat exchangers may or may not result in immediate danger from Carbon Monoxide. However, cracks in heat exchangers will expand and may also appear in different parts of the heat exchanger where combustion by-products may enter into the home.

It is the recommendation of Rite-Way Ventilating Co. to: Replace entire heating & cooling system

12. At the bottom of the Rite Cracked Heat Exchanger Checklist, Ms. Vitale signed it after the following language: “As the customer, I have been informed by Rite-Way Ventilating Co. of the above testing results and have been made aware of the condition of the furnace/heat exchanger.” 13. Ms. Vitale contends that Mr. Walter violated industry protocol by starting her unit before visually inspecting it and cleaning it. In support of her contention, Ms. Vitale offered into evidence the written statements of James J. Mouser, which were admitted into evidence.[1] Mr. Mouser is an employee of American Conditioned Air, Inc., a licensed contractor. He is NATE certified.[2] 14. Mr. Mouser states in his written testimony the following: “When responding to an annual service call for a gas furnace, I will determine whether the furnace is off or on when I arrive at the home. If it is off, I will visually inspect and service the furnace before starting it for the season.” 15. Mr. Mouser would perform any cleaning of the unit prior to starting it up. If the unit is found to be leaking carbon monoxide, he would turn off the gas supply to the unit for safety. 16. Mr. Mouser’s written testimony does not establish an industry standard of whether a unit should be started before or after an inspection and service. Mr. Mouser’s written testimony only establishes his common practice. 17. The Carrier Owner’s Manual contains a section entitled “REGULAR DEAL MAINTENANCE” which sets forth the elements of an annual or biannual inspection of the unit. However, the Carrier Owner’s Manual does not require that a gas furnace be visually inspected and serviced, if necessary, prior to starting up the unit. 18. Ms. Vitale presented documentary evidence in the form of a Rheem gas furnace manual. The Rheem gas furnace manual has a section entitled “FURNACE MAINTENANCE – DEALER/CONTRACTOR” which sets forth the items to be performed during an annual inspection. However, that manual does not require that a gas furnace be visually inspected and serviced, if necessary, prior to starting up the unit. 19. Rite presented testimonial evidence that its protocol is to have a technician start a unit to determine if it is operational, prior to cleaning and servicing the unit. Rite’s protocol is based on its experience of cleaning and servicing units and then finding that the unit is not operational. Rite’s experience further is that when a unit is not operational after performing service on a unit, the customer claims that Rite damaged their unit. 20. Ms. Vitale failed to establish by credible and reliable evidence that the HVAC industry standard requires a competent HVAC technician to first visually inspect a gas furnace and then service the unit prior to turning the unit on to determine if it is operational. 21. At the conclusion of Mr. Walter’s service call, Rite presented Ms. Vitale with an invoice for the service call. In that invoice, the following description of services was handwritten: Found furnace having delayed ignition. Heat exchanger cracked and very rusted. CO test was positive in home. Shut down furnace. Burner compartment very burnt up from the furnace flames rolling out. $78.00 diagnostic to be credited back once system is purchased.

22. Rite also presented Ms. Vitale with a written Proposal dated November 27, 2007, for a new complete HVAC system. 23. Rite did not recommend replacing the heat exchangers because that service would be almost as much as a new gas furnace. Rite also did not recommend a new gas furnace because the balance of Ms. Vitale’s HVAC system was approximately 27 years old, which is well beyond the normal life expectancy for such a system. 24. Rite was not contractually obligated to perform any further work for Ms. Vitale unless she elected to accept Rite’s replacement proposal, which she did not accept. 25. Ms. Vitale contacted Southwest Gas Corporation (“Southwest”) to schedule a service call. 26. On November 28, 2007, Southwest performed a service call at Ms. Vitale’s residence. Southwest left a written Notice of Hazardous Conditions on Customer’s Premises with the following analysis: The HVAC system had “Possible cracked heat exchanger – unit must be checked by service agency or dealer.” The HVAC system was found to have been left on. Southwest’s notice contained the following comment: “cracked – corroded heat exchanger.” The meter was left on. Ms. Vitale signed the Southwest notice acknowledging receipt of the above- described information. 27. By letter dated November 28, 2007, Southwest referred the names of three licensed HVAC contractors to Ms. Vitale. One of the referred contractors was American Conditioned Air, Inc. 28. On December 10, 2007, Mr. Mouser performed a service call at Ms. Vitale’s residence. Mr. Mouser performed the following scope of work for a price of $1,622.72, which was paid by Ms. Vitale: Replaced 5 cell heat exchangers and repaired minor cabinet sheet metal corrosion – replaced pilot assy[3] and thermocouple – cleaned unit. Unit operating normal. C.O. check good.

29. At hearing, one of Ms. Vitale’s original heat exchangers was presented as demonstrative evidence. The heat exchanger had a hole clearly caused by rust and not an explosion. 30. Rite performed the service call at Ms. Vitale’s residence in a workmanlike manner. 31. Rite is not responsible for Ms. Vitale electing to replace her old, rusted heat exchangers. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Rite and the subject matter in these consolidated cases. 2. Pursuant to A.A.C. R2-19-119(B), Ms. Vitale has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-1119(A). 3. Ms. Vitale failed to sustain her burden of proving that Rite violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. 4. The Administrative Law Judge concludes that Ms. Vitale failed to meet her burden of proving her entitlement to restitution in this matter. Therefore, the Administrative Law Judge is without a factual basis to recommend restitution pursuant to A.R.S. § 32-1156.01. RECOMMENDED ORDERS Case No. 2010-2261063 Case No. 2010-2261063 against Rite’s License No. 025104 shall be dismissed on the effective date of the Order entered in that matter. Case No. 2010-[number redacted] Case No. 2010-[number redacted] against Rite’s License No. 235235 shall be dismissed on the effective date of the Order entered in that 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, May 25, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Ms. Vitale testified that Mr. Mouser was not available to testify in person due to his being out of state. Pursuant to A.R.S. § 41-1092.07(F) (4), a party may make application to have a deposition taken of an unavailable witness. If Ms. Vitale had made such an application and it was granted, then Rite would have had the opportunity to cross-examine Mr. Mouser, and the Administrative Law Judge would have given such evidence greater weight. [2] The North American Technical Excellence is a leading non-profit certification program for technicians in the heating, ventilation, air conditioning and refrigeration industry. [3] Abbreviation for the word “assembly.”

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