ALJDEC decisions subject to certification as final

2010A-22480245-ROC · Registrar of Contractors · 2010-08-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19, 2010 APPEARANCES: Complainant Joan Carrick appeared on her own behalf. Ken Van Cott appeared on behalf of Respondent Lee Collins Air Conditioning Company. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Lee Collins Air Conditioning Company (“Lee Collins”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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. Lee Collins is the holder of a Class C-39R license (No. 034670) issued by the Registrar of Contractors (“ROC”). Ken Van Cott is an officer of Lee Collins and its qualifying party. 2. At all times relevant hereto, Complainant Joan Carrick has had a home maintenance contract with American Home Shield (“AHS”). Lee Collins has been the service provider for Ms. Carrick’s HVAC system for some time, as it is a preferred vendor for AHS. 3. On February 11, 2009, Lee Collins was dispatched to Ms. Carrick’s home by AHS to perform a service call. Lee Collins checked the heat pump and replaced a 1/3 horsepower condenser motor. See Exhibit 1. The service technician noted on the invoice that the unit was in need of a defrost board. Id. 4. On October 19, 2009, Lee Collins was dispatched to Ms. Carrick’s home by AHS. Lee Collins’ technician checked the air conditioning system, cleaned the filter, checked the motors and compressor, as well as the Freon, cooling controls, and the overall operation of the system. See Exhibit 2. 5. On December 5, 2009, Ms. Carrick contacted AHS to complain that her heating system was producing cold air. AHS advised Ms. Carrick that because it was a Saturday, it would dispatch Lee Collins to her home on the following Monday. Ms. Carrick was dissatisfied with AHS’s response. Ms. Carrick contacted Lee Collins directly to request that a technician be sent to her home that day. Lee Collins advised Ms. Carrick that it was not authorized to perform work at her home and needed to wait for AHS’s authorization. 6. Not wanting to wait until Monday, Ms. Carrick contacted another contractor, George Brazil, to perform the work. George Brazil refused to perform any work on Ms. Carrick’s heating system unless she executed a five-year maintenance contract at a cost of $849.00, notwithstanding the fact that Ms. Carrick advised George Brazil’s technician that she had an existing home maintenance contract with AHS. See Exhibit 5. Ms. Carrick executed the five-year maintenance contract and requested that George Brazil perform the repair work. In addition to the maintenance contract price, George Brazil charged Ms. Carrick for the repair work, for a total cost of $1,064.32. See Exhibit 4. 7. On December 22, 2009, Ms. Carrick filed a complaint against Lee Collins with the ROC generally alleging that Lee Collins had performed defective repair work and failed to install a defrost panel. 8. ROC Inspector Mark Alyea investigated Ms. Carrick’s complaint. 9. On January 13, 2010, Inspector Alyea conducted a jobsite inspection. 10. On January 19, 2010, following the jobsite inspection, Inspector Alyea issued a letter to the parties advising that he determined that Ms. Carrick’s complaint should be closed due to the fact that another contractor corrected the HVAC unit prior to the jobsite inspection. 11. Inspector Alyea opined that AHS “put [Ms. Carrick] off” and “didn’t do what they were supposed to do.” Inspector Alyea opined that George Brazil took advantage of Ms. Carrick by pressuring her into executing an extended maintenance contract notwithstanding that she had an existing home maintenance contract with AHS, and then overcharged her for the work. 12. Ms. Carrick testified that she contacted Lee Collins after AHS would not provide authorization for Lee Collins to provide service on a Saturday. Ms. Carrick testified that she spoke with Mr. Van Cott who confirmed that AHS would not provide authorization for service until Monday. Mr. Van Cott suggested to Ms. Carrick that she contact AHS once again and demand that it dispatch a contractor, or alternatively, that she stay in a hotel. Ms. Carrick decided she could not wait until Monday for Lee Collins to service the unit because cold air was emanating from the unit and she suffers from Cellulitis. Staying in a hotel was not an option for Ms. Carrick as she is not very mobile. Ms. Carrick testified that she contacted George Brazil and explained to the technician that she has a home maintenance contract with AHS. Ms. Carrick testified that George Brazil’s technician informed Ms. Carrick that he would not perform any repair work until she signed a maintenance contract with George Brazil. 13. Mr. Van Cott testified that Lee Collins has been a contractor for AHS for twenty-eight years and that Lee Collins has performed work for Ms. Carrick in the past. Mr. Van Cott testified that Lee Collins bypassed the defrost panel in February 2009, and explained the mechanical reason for the bypass. Mr. Van Cott testified that the bypass did not affect the heating capacity of the unit. On December 5, 2009, Lee Collins received a dispatch call from AHS to service Ms. Carrick’s unit the following Monday because it was not extremely cold and AHS did not consider the request to be emergency in nature. Mr. Van Cott acknowledged suggesting that Ms. Carrick stay in a hotel. However, Mr. Van Cott credibly testified that he was unaware of Ms. Carrick’s health issues and lack of mobility at the time he made the suggestion. Mr. Van Cott testified that Ms. Carrick called him after she received George Brazil’s estimate and prior to George Brazil performing any work, and that he advised her not to proceed because of the “outrageous” pricing. Notwithstanding Mr. Van Cott’s recommendation, Ms. Carrick chose to execute the extended maintenance contract and have George Brazil perform the work. Mr. Van Cott opined that George Brazil took advantage of Ms. Carrick. 14. The Administrative Law Judge finds, based upon the credible evidence of record, that Ms. Carrick’s complaint against Lee Collins is misplaced. Ms. Carrick’s home maintenance contract is with AHS and Lee Collins is contracted with AHS. Lee Collins cannot be held responsible for the fact that AHS refused to dispatch a technician to Ms. Carrick’s home on a Saturday, nor can Lee Collins be held responsible for Ms. Carrick’s decision to contract with George Brazil for an extended maintenance contract and for the repair work. CONCLUSIONS OF LAW In this proceeding, Ms. Carrick bears the burden to prove, by a preponderance of the evidence, that Lee Collins is subject to discipline for violations of A.R.S. § 32-1154(A)(1) and/or (A)(3) as charged by the ROC in its March 29, 2010 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Ms. Carrick has failed to meet her burden of proof as to both of the ROC’s charges. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for the “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes that the credible evidence of record failed to establish that Lee Collins abandoned its contract or refused to perform. Ms. Carrick’s contract was with AHS, not Lee Collins, and it was AHS that refused to dispatch Lee Collins until the following Monday. Therefore, the Administrative Law Judge concludes that Lee Collins is not in violation of A.R.S. § 32-1154(A)(1). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Lee Collins with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible evidence of record failed to establish that Lee Collins failed to perform work at Ms. Carrick’s home in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Therefore, the Administrative Law Judge concludes that Lee Collins is not in violation of A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against Lee Collins’ license. The ROC’s Citation in Case Number 2010- 22480245, and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Lee Collins’ license, and that the Citation issued in Case Number 2010-22480245, together with the Complaint upon which it is based, be dismissed. 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 3, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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