ALJDEC decisions subject to certification as final

2010A-308474815-ROC · Registrar of Contractors · 2011-04-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 16, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by Mark Miku, Managing Member and Qualifying Party.

WITNESSES: Beau Cruz, ROC Inspector Patty Robinson Mark Miku

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship and failure to comply with an order issued by the Registrar of Contractors. Complainant makes these claims against Respondent with regard to the air conditioning system components installed by Respondent at her manufactured home. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license K-39.247242-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning and heating systems (excluding solar) for both residential and commercial properties. The Qualifying Party for the license is Mark Miku. 2. In May 2008, Respondent installed a new condenser unit and air handler in Complainant’s existing air conditioning system at her home. Complainant also purchased from Respondent an extended service agreement to cover those two components. Complainant was not happy with the way the system ran after the installation. She blamed increased electricity bills on the new system. In March 2009, Respondent re-sealed the ductwork around the air handler in order to help the system function better. 3. In July 2010, Complainant filed a complaint with the ROC, complaining about the system because the condenser was constantly running and the system was not cooling her house properly. She filed the complaint after she had another contractor look at the system to give her a diagnosis of the problems. That contractor found that the air handler, which is installed in an outdoor closet at Complainant’s manufactured home, was taking in a fair amount of outside air. The contractor characterized it as inadequate “sealing” of the unit. 4. ROC Inspector Beau Cruz inspected the system on August 6, 2010. He found that the air handler was an indoor-unit set in a closet that opens to the outdoors. He found that the unit was installed properly.[1] He took a temperature reading inside the home (in the living room, five feet above the floor) and found it to be 81.3 degrees. However, he did not record the indoor temperature reading on the thermostat or the outdoor temperature. 5. The ROC publishes “Workmanship Standards for Licensed Contractors” in both pamphlet form and on its website. Those published standards apply to air conditioning systems and call for a system to cool a structure 30 degrees lower than the outside air temperature when measured in the center of a room at five feet height. The lowest temperature the system must be able to reach inside the home is 78 degrees.[2] 6. Inspector Cruz testified that the standard procedure for preparing a home to take temperature readings is to run the air conditioning system with the thermostat set at 75 degrees for three hours before taking the temperature in the home. For his inspection of Complainant’s home, that process was not followed. Instead, when Inspector Cruz arrived for the inspection the thermostat was at set at 80 degrees. He reset it to 75 degrees and waited 45 minutes before taking the reading that showed 81.3 degrees. 7. The other issue that the Inspector looked at was the sealing of the air handler. He found that it was taking in too much ambient air, which was causing the condenser to run longer and not efficiently. 8. Inspector Cruz issued a Corrective Work Order (CWO) that ordered Respondent to correct the inside temperature and seal the air handler better. Respondent performed work to address those issues. Shortly after the inspection, but before the CWO was issued, Respondent installed a new and larger condenser. After the CWO was issued, Respondent performed more work to seal the air handler. Complainant requested a hearing. 9. Inspector Cruz performed a pre-hearing inspection focused on the issue concerning the sealing of the air handler. He found that the handler had been sealed as best it could be without screwing shut the access panel—a condition that would make it difficult for Complainant to then change the filter in the air handler because she would have to unscrew and re-screw the panel every time she changed a filter. In addition, he discovered that the filter was difficult to change in the unit because there is a protrusion that partially blocks the filter when it is being slid into place. All three witnesses testified that the filter can be put in place with a little effort, but there is a possibility of damaging the filter if it is not done properly. The inspector testified that this issue relates to workmanship because equipment must be useful for its intended purpose. 10. Mark Miku testified for Respondent that the air handler was designed for use of cloth filters that are more flexible than paper filters. Complainant has been using paper filters. Paper filters can be used in the unit but must be carefully placed and removed because they are stiffer than cloth filters. 11. Inspector Cruz testified at the hearing that the air handler is installed properly and meets code. He does not believe the unit can be sealed any better that it is currently, without screwing down the access panel. His only concern at the hearing was the difficulty in changing the filter. But, he did acknowledge that the filter can be changed without damaging it. 12. Complainant testified at hearing that the system was cooling the home properly the last time she used it, but she has not had the system cooling the home for months because of the cooler temperatures during the winter. She also testified that she could not take the filters out to replace them without damaging them. 13. Finally, Complainant raised an issue in her complaint and at hearing regarding the extended service agreement she purchased from Respondent. When the new condenser unit was installed by Respondent in August 2010, she lost coverage for that equipment because the new condenser is not covered under the prior extended service agreement she purchased from Respondent in 2008. Therefore, she requested in her complaint a refund of the entire amount she paid for the extended agreement. However, the evidence shows that she received two years of extended service agreement coverage of the prior condenser (installed in 2008) and that the extended service agreement still covers the air handler. In addition, the new condenser carries with it a manufacturer’s warranty of one year for labor and parts and ten years for parts only. Thus, the evidence shows that Complainant lost seven years of labor coverage on the prior condenser, but received a new and larger condenser at no cost to her. Furthermore, Complainant was not able to quantify the value of the coverage she lost, which would be necessary to support an order for restitution. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(3) by way of ROC Rule R4-9-108, and (A)(23). Subsection (A)(2) prohibits failure to build according to plans, specifications, and building codes. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. Subsection (A)(23) requires compliance with a CWO issued by the ROC. 3. The evidence does not show that Respondent violated any of the cited provisions. Respondent installed the components in accordance with specifications and building codes, did not performed below minimum workmanship standards, and complied with the CWO. When issues arose with the system, Respondent addressed them. Respondent made the system work better in response to the CWO. According to the evidence presented at hearing, the air conditioning system meets code and workmanship standards at this time. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Indoor Comfort Experts LLC dba ICE 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, April 5, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Although there was an initial issue with the inverted installation method, literature from the manufacturer shows that the unit can be installed in an inverted manner and that issue was not presented at the hearing. [2] Workmanship Standards for Licensed Contractors (June 2009) at p. 3, #6. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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