ALJDEC decisions subject to certification as final

2010A-308474881-ROC · Registrar of Contractors · 2011-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, 2011

APPEARANCES: Complainants appeared on their own behalf; Respondent appeared through Kirk Mills, Member and Qualifying Party, and Kimberly Mills, Member.

WITNESSES: Daniel Grimm Susan Grimm Kirk Mills Kimberly Mills

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action claiming poor workmanship and fraud by Respondent with regard to work done on the air conditioning system at their home. The claim is that Respondent should have refused to put new parts in an old unit and should have insisted on replacement of the old unit over wishes of Respondent’s customer. Respondent disagrees. 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-39.231310-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 Kirk Mills. 2. In June 2010, Respondent was hired by realtor “Laura Burke” to repair an air conditioning unit (“A/C”) at a residence on Mountain View Road in Peoria, Arizona. Burke explained to Respondent that she needed the A/C to work so that she could do a walkthrough later that day. She explained that her client the bank, who was selling the house, only wanted the unit repaired and not replaced. The A/C unit was over 25 years old. Respondent went to the house and found that the old unit could be repaired but recommended that it be replaced because of its age and because it was undersized due to additions put on the house. Burke told Respondent to repair it, and Respondent did so. 3. According to Respondent’s records, the unit had a bad valve that was leaking coolant. Respondent replaced that valve and recharged the coolant. Respondent also found an open damper that was causing an imbalance in the system and corrected that problem. The A/C unit was then working properly, and Respondent left the job. 4. Complainants were in the process of closing on the purchase of the Mountain View house in June 2010. Evidence shows that Complainants walked through the house on June 26, 2010, and accepted the condition of the property. It appears that the A/C unit was working properly in late June 2010 when Complainants’ purchase closed. 5. On July 2, 2010, Complainants were preparing the house prior to moving in and noticed that the A/C was not cooling properly. They contacted Respondent, who found that the condenser fan motor had locked up. Respondent informed Complainants that this was a different failure than the prior one. Respondent replaced the motor at the direction of Complainants. Complainants asked Respondent for a quote on the cost of replacing the A/C unit with a new one. Respondent left the site with the old unit working and Complainants considering buying a new unit. 6. Later that month, Respondent helped Complainants get approval for financing for a new unit and scheduled an installation date. During the course of the interaction, Complainants asked if Respondent had told Burke that the unit was old and needed to be replaced. Kirk Mills stated that he had done so verbally. Complainants were upset because they had wanted the seller to replace the unit before closing, with money set aside for that purpose. In order to assist Complainants, Respondent decided to add a comment to its June 14, 2010 invoice (Invoice #3522). In a different color ink, Kirk Mills added to that invoice that he had advised Burke to replace the unit. The date that the additional comment was added is not stated on the invoice, but the evidence shows that it was July 6, 2010. The invoice with the additional comment was then faxed to Complainants. 7. Complainants had another company install a new A/C unit in late July 2010. Complainants filed their complaint against Respondent on August 3, 2010, claiming that Respondent should have replaced the unit in June and that Respondent fraudulently altered an invoice. 8. The parties appeared at hearing and testified about the facts stated above. The original Invoice 3522 was presented and shows that the added comment was written in a different color ink than the rest of the invoice. 9. This tribunal finds that Kirk and Kimberly Mills are credible witnesses and that the submitted documentation supports their testimony as to what happened between Respondent and Burke. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainants have not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108, and (A)(7). Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. Subsection (A)(7) prohibits contractors from engaging in fraudulent acts that substantially injure another person. 3. The evidence does not show that Respondent failed to meet workmanship standards or that Respondent engaged in fraud. Respondent advised Burke that the unit should be replaced, but honestly stated that the unit could be repaired. If anything, Respondent had incentive to sell a new unit to Burke and to Complainants, not to truthfully state that a repair would work to fix the unit. Respondent was truthful to both Burke and Complainants. Both Burke and Complainants chose repair over replacement. In addition, Respondent did not improperly alter the invoice by adding an additional comment at a later date. The comment that was added was obviously an addition to the invoice and was a true statement of what occurred. That action does not constitute fraud. 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 Thermal Pro’s Air Conditioning and Heating dba Aire Serv of NW Phoenix 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, March 28, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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