ALJDEC decisions subject to certification as final

2010A-308474502-ROC-res · Registrar of Contractors · 2012-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2012, at 1:00 p.m. APPEARANCES: Mona Jenkins (hereinafter “Complainant”) appeared on her own behalf. Reyna Heating and Air Conditioning LLC (hereinafter “Reyna”) appeared through its qualifying party and member, Jose Martin Valdez. A Spanish/English Interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law are made: FINDINGS OF FACT 1. The Registrar of Contractors’ Order Setting Limited Evidentiary Hearing/Order Granting Extension of Time to Comply provided, in pertinent part, as follows: On April 3, 2012, the Registrar issued an Order Granting Extension of Time in this matter providing that the terms of the December 22, 2011 Order require that Respondent cause a properly licensed HVAC contractor of Complainant’s choice to fully comply with the written Corrective Work Order issued in this matter. The Registrar further clarified such to mean that Complainant is to choose a contractor, not only solicit bids, and inform Respondent of that choice so that Respondent can cause said contractor to correct Respondent’s work. The Registrar provided that the term “cause” includes paying said contractor to do the corrective work. The Registrar further confirmed that its December 22, 2011 Order does not require Complainant to allow Respondent access to Complainant’s property.

On or about April 18, 2012, Respondent submitted written correspondence in this matter with the Registrar maintaining, among other things, that Complainant “is sending [Respondent] estimates for unit replacements . . . . According with the order [Complainant] is order to look up for a license company to fix up the listed problems on the order.” (sic) Attached to such correspondence was a copy of a proposal dated January 16, 2012, from American Conditioned Air, Inc. The proposal provided, among other things, for removal and replacement of a gas furnace, evaporative coil and condenser and provided a total cost of $5,500.00.

On or about April 19, 2012, the Registrar received a copy of a Proposal and Contract dated April 16, 2012, from American Conditioned Air, Inc., for the removal and replacement of a “split A/C system and furnace and installation of a thermostat,” among other things, at Complainant’s residence and provided a total cost of $5,546.00.

On or about May 14, 2012, Respondent submitted a Motion to Request Clarification on Corrective Work Order and for an Extension of Time in this matter with the Registrar requesting that the Registrar provide clarification regarding the specific work that needed to be done so as to allow Respondent to achieve compliance with the terms of the April 3, 2012 Order. Respondent maintains that the proposal provided by Complainant is for an entirely “new air conditioning system” which is not provided for in the Registrar’s Corrective Work Order. Respondent also requested an extension of time to comply with the Registrar’s Corrective Work Order due to the parties needing further clarification regarding the contents of the Corrective Work Order.

On or about July 3, 2012, Complainant submitted written correspondence with the Registrar in this matter providing, among other things, that compliance with the Corrective Work Order will not rectify the issues at hand. Complainant provided that Respondent should be held responsible for the damages to her home as well as the complete removal and replacement of the entire A/C system. Attached to the correspondence was a copy of her previous correspondence with the Registrar, dated January 23, 2012. Also attached to the July 3, 2012 correspondence was a copy of an email to Complainant from Suncrest Refrigeration Heating and Cooling, LLC, License No. C39R.270827-R, providing “[t]he split system you have now is a junk system, missed (sic) matched equipment, different brands of equipment, and low rated energy efficiency because of missed (sic) matched system. The current system does not cool. Due to January 2010 Federal mandated [l]aw, the R-22 system you currently have are no longer manufactured or available . . . we can no longer replace old system [parts] with matching parts . . . .”

Upon review and consideration, and with good cause appearing, IT IS ORDERED that a Limited Evidentiary Hearing be set in the expedited course of docketing in the Tucson area. At the Evidentiary Hearing, the parties may offer evidence and testimony as to determine the following:

1. Whether or not the 2010 Environmental Protection Agency Regulations which subsequent to January 1, 2010, prohibit the shipping of new equipment that utilizes R-22, thereby prohibit the continued use of the equipment installed by Respondent at Complainant’s residence.

2. Whether or not the scope of the Corrective Work Order is sufficient enough that upon full compliance that the air conditioning unit would meet minimum standards and pass all required inspections.

IT IS FURTHER ORDERED that prior to the date and time set for the Evidentiary Hearing in this matter, a newly assigned Agency Inspector, Inspector Randy Cason, will conduct a prehearing inspection of the work at issue as well as a review of the documents contained in the file and prepare a written Pre-Hearing Inspection Report containing his findings and conclusions. Inspector Cason will submit such Pre-Hearing Inspection Report to the Registrar’s Legal Department, and the Legal Department will forward such on to the assigned Administrative Law Judge.

1st issue: Whether or not the 2010 Environmental Protection Agency Regulations that prohibit the shipping of new equipment that utilizes R-22 after January 1, 2010, thereby prohibit the continued use of the equipment installed by Respondent at Complainant’s residence. [1]

2. The assigned Agency Inspector, Randy Cason (hereinafter “Inspector Cason”), testified that he conducted an evidentiary pre-hearing inspection at Complainant’s residence on November 6, 2012. Inspector Cason stated that he inspected the Day & Night Condenser unit installed by Reyna and observed that the manufacturer’s metal label stated that the condenser unit contains R-410A Refrigerant.[2] 3. Inspector Cason testified that the parties informed him that Reyna installed a Goodman Company LP evaporative coil to Complainant’s existing Payne furnace. 4. Inspector Cason testified that he checked the Goodman Coil installed by Reyna and observed that the manufacturer’s metal label stated that the coil unit also contains R-410A Refrigerant.[3] 5. Inspector Cason opined that, based on the information provided on the manufacturer’s metal labels on the Goodman Company LP Coil and the Day & Night Condenser, the equipment contains R-410A Refrigerant and that Reyna is in compliance with the 2010 Environmental Protection Agency Regulations.[4] 6. Inspector Cason’s testimony is found to be credible. 2nd issue: Whether or not the scope of the Corrective Work Order is sufficient to ensure that upon full compliance, the air conditioning unit would meet minimum standards and pass all required inspections.[5]

7. Inspector Cason testified that Complainant’s air conditioning system would function properly if the terms of the Corrective Work Order and the directives of the local Building Authority were fully complied with. Inspector Cason stated that the scope of the Corrective Work Order is sufficient to ensure that upon full compliance, Complainant’s air conditioning unit would meet minimum standards and pass all required inspections.[6] 8. Inspector Cason testified that the bids Complainant had obtained were for removal and replacement of Complainant’s air conditioning system rather than the correction of Complainant’s air conditioning system. Inspector Cason stated that the Corrective Work Order did not require the removal and replacement of Complainant’s air conditioning system. Inspector Cason testified that Complainant had informed him that she had been unable to locate an HVAC contractor willing to perform corrective work on her air conditioning system. Inspector Cason stated that the Goodman Company LP Coil and the Day & Night Condenser installed by Reyna are compatible but that most HVAC contractors would be unwilling to perform the corrective action set forth in the Corrective Work Order unless the entire air conditioning system was replaced.[7] 9. Inspector Cason testified that he had reviewed the 13 complaints filed against Reyna prior to the hearing. Inspector Cason stated that all of the complaints had been settled by Reyna except for one complaint that was closed for being filed beyond the two-year statutory limitations period and three complaints that were closed with no action required. Inspector Cason testified that it appeared that Reyna generally attempted to resolve the complaints filed against it.[8] 10. Inspector Cason testified that based upon the Complainant’s difficulty in obtaining bids from alternative licensed HVAC contractors to perform the corrective action set forth in the Corrective Work Order, he wondered if there was a possibility that the December 22, 2011 Order of the Registrar could be amended to allow Reyna to perform the directed corrective work instead of paying another contractor to fully comply with the terms of the Corrective Work Order.[9] 11. Inspector Cason testified that during the pre-hearing inspection, he asked Complainant to turn her air conditioning system on. Inspector Cason stated the interior temperature was 73 degrees and he asked Complainant to set the thermostat at 70 degrees. Inspector Cason stated that after he completed his inspection on the outside of Complainant’s residence, he checked Complainant’s thermostat again and observed that the interior temperature had increased to 76 degrees.[10] 12. Inspector Cason testified that he checked all of the registers in each of the rooms and that he could feel cool air being withdrawn from each of the rooms. Inspector Cason opined that Reyna inadvertently disconnected the main cooling duct while it was performing its work on Complainant’s residence. Inspector Cason testified that the air conditioning system was apparently producing cool air but that it was not being directed into the interior of Complainant’s residence.[11] 13. Inspector Cason’s testimony is found to be credible. 14. Complainant testified that she has had three or four different HVAC contractors inspect her air conditioning system. Complainant stated that all of the HVAC contractors informed her that the condenser and coil installed by Reyna were R-22 Refrigerant systems rather than R-410A Refrigerant systems and that she believed that her air conditioning system was not in compliance with 2010 Environmental Protection Agency Regulations.[12] 15. Complainant testified that her air conditioning system does not work and that she has not used her air conditioning system for two years. Complainant stated that she would like to have the condenser and coil installed by Reyna removed from her residence and her contract with Reyna canceled so that she would not have to deal with it anymore.[13] 16. Complainant stated that she had obtained a written Proposal and Contract from American Conditioned Air Inc.[14] for the removal and replacement of her air conditioning system and furnace for the sum of $5,546.00.[15] 17. Complainant stated that she had also obtained an estimate from Suncrest Refrigeration Heating and Cooling LLC[16] for the removal and replacement of her air conditioning system and furnace for the sum of $6,500.00.[17] 18. Complainant testified that she believed that Reyna had failed to properly perform a “Heat Index” and that the condenser unit installed by Reyna was too small for her house. Complainant stated that a larger condenser unit should be installed to fully comply with the terms of the Corrective Work Order.[18] 19. Complainant testified that every HVAC contractor that she has contacted informed her that it is difficult to get three different brands of air conditioning systems to work together. Complainant stated that she was informed that it would be more energy efficient and cost effective to replace the three different systems in her air conditioning system with one single brand of air conditioning system. Complainant stated that she believed that Reyna may have damaged her furnace.[19] 20. Reyna’s qualifying party, Jose Martin Valdez (hereinafter “Mr. Valdez”), testified that the air conditioning equipment installed by Reyna were R-410A Refrigerant systems in compliance with the 2010 Environmental Protection Agency Regulations.[20] 21. Mr. Valdez testified that the installation of the Complainant’s air conditioning system is correct. Mr. Valdez stated that Reyna was willing to correct any problem with the air conditioning system. Mr. Valdez testified that Reyna had been in business for 12 years and occasionally had problem employees.[21] 22. Mr. Valdez testified that he would do whatever was necessary to correct the air conditioning system to Complainant’s satisfaction.[22] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119 2. 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). 3. This Tribunal concludes that based the information provided on the manufacturer’s metal labels on the Goodman Company LP Coil and the Day & Night Condenser, the air conditioning equipment installed by Reyna in Complainant’s residence contains R-410A Refrigerant rather than R-22 Refrigerant and that the Goodman Company LP Coil and the Day & Night condenser installed by Reyna in Complainant’s residence are in compliance with the 2010 Environmental Protection Agency Regulations. 4. Inspector Cason credibly testified that the scope of the Corrective Work Order is sufficient to ensure that upon full compliance, Complainant’s air conditioning system would meet minimum standards and would pass all required inspections. Based on Inspector Cason’s credible testimony, this Tribunal concludes that the scope of the Corrective Work Order is sufficient to ensure that upon full compliance Complainant’s air conditioning system would meet minimum standards and pass all required inspections. RECOMMENDed order In view of the foregoing, and in view of Complainant’s difficulty in obtaining bids from alternative licensed HVAC contractors to perform the corrective action set forth in the Corrective Work Order, it is recommended that the December 22, 2011 Order of the Registrar be amended to allow Reyna to perform the directed corrective work instead of paying another contractor to fully comply with the terms of the Corrective Work Order. It is further recommended that the December 22, 2011 Order of the Registrar be amended to provide that on the effective date of the Amended Order, License No. K-39.211910-D of Reyna shall be revoked unless the Registrar of Contractors receives and accepts written proof that Reyna has fully complied with the directives from the local building authority and the terms of the written Corrective Work Order issued in this matter. It is further recommended that if on or before the effective date of the Amended Order, Reyna provides acceptable proof that it fully accomplished the above described corrective action, then the above provided License revocation shall not take place and this matter be shall be closed. 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, November 29, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Acting in accordance with an international treaty called the Montreal Protocol, the U.S. Environmental Protection Agency (EPA) has mandated the phaseout of R-22 refrigerant through the Clean Air Act. As of 2010, the manufacture of systems using R-22 refrigerant will be prohibited, and by 2020 the production of R-22 refrigeant itself must cease. The main reason for this regulatory action is that R-22 is a hydrochlorofluorocarbon (HCFC) compound, which contains ozone-depleting chlorine. R-410A refrigerant does not contain chorine. [2] 11/26/12 Hearing Record (hereinafter “H.R.”) at 28:44-28:59. [3] H.R. at 29:19-29:54. [4] H.R. at 29:58-30:53. [5] The 8/23/10 Corrective Work Order provides, in pertinent part, as follows:

Obtain a mechanical building permit and all approved inspections from the local building authorities.

1. Allegation: Relocate ref-lines, insulate & clamp down. Need separate ref-line hole out of house (not dryer vent). The jobsite inspection found the refrigerant lines routed through the dryer vent. The lines were not secured and were missing insulation/tape in areas. The contractor is to correct. 2. Allegation: Condensation drain-coil needing drain. The jobsite inspection found a temporary drain line installed by another. The homeowner claims that the mechanical technician left the coil pan drain hole plugged/capped. The contractor is to correct. 3. Allegation: Insulate & tape duct work. Jose Martin Valdez of Reyna Heating & Air Conditioning LLC agreed to correct. 4. Allegation: Condensor needs its own pad. Remove wooden pallet. The jobsite inspection found the condensing unit sitting on a wooden pallet. The contractor is to correct. 5. Allegation: Reattach & secure combustion air relief vent to office. Valdez agreed to correct. 6. Allegation: Stated they would take off swamp cooler& put AC unit on roof-(didn’t). Due to conflicting statements by the parties during the inspection, I cannot confirm what agreement was made regarding the cooler and the location of the condensing unit. No action required. 7. Allegation: Drilled different location for thermostat-(stated they would be together). Valdez agreed to correct/relocate. 8. Allegation: Came to my house without permission- trespassed to get gauges. This agency lacks jurisdiction. It will be necessary for both parties to coordinate schedules in order to resolve this dispute.

[6] H.R. at 31:12-32:03. [7] H.R. at 39:21-42:26. [8] H.R. at 44:16-45:32. [9] H.R. at 45:33-46:05. [10] H.R. at 48:05-48:33 [11] H.R. at 48:44-49:23. [12] H.R. at 52:09-52:46. [13] H.R. at 52:48-53:28. [14] American Conditioned Air Inc. holds License Number C-39R-046247-R. [15] See Exhibit No. C-4 (4/16/12 Proposal and Contract from American Conditioned Air Inc.). [16] Suncrest Refrigeration Heating & Cooling LLC holds License No. C-39R- 270827-R. [17] See Exhibit No. C-3 (1/26/12 email from Suncrest Refrigeration Heating & Cooling LLC). [18] H.R. at 1:05:21-1:05:59. [19] H.R. at 1:06:52-1:08:21. [20] H.R. at 1:09:21-1:10:35. [21] H.R. at 1:10:50.-1:11:40. [22] H.R. at 1:12:42-1:13:03.

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