ALJDEC decisions subject to certification as final

2010A-308477329-ROC · Registrar of Contractors · 2011-05-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2011 APPEARANCES: Susan Ferraro appeared personally. Advanced Mechanical Incorporated, doing business as A M I, was represented by its authorized representative, John Pomeroy. 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. Advanced Mechanical Incorporated, doing business as A M I (“Respondent”), is the holder of License No. 230876, a Class K-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Susan Ferraro (“Complainant”) and L. Susan Custer are co-owners of a residence located at 16843 E. Last Trail Drive, Fountain Hills, Arizona. 3. On April 9, 2010, Respondent’s technician performed a service call for two HVAC units at the subject residence. 4. During the service call, the technician completed a Service Order Invoice for Complainant. The Service Order Invoice listed a description of work that included a total charge of $1,260.00, or no charge for each item of work if the maintenance policy was purchased for the price of $1,698.00. 5. Ms. Custer, who was present during the service call, accepted Respondent’s offer of a maintenance policy for $1,698.00, which also included no charge for the work performed during the service call. 6. On the bottom of the Service Order Invoice, Ms. Custer signed her name under the following language: I have authority to order the work outlined above which has been satisfactorily completed. I agree that Seller retains title to equipment/materials furnished until final payment is made. If payment is not made as agreed, Seller can remove said equipment/materials at Seller’s expense and/or impose a 2% liquidation fee on the entire amount contained in the Seller/Buyer transaction. Any damage resulting from said removal shall not be the responsibility of Seller.

7. After accepting and paying for the maintenance policy, Ms. Custer and Complainant attempted to cancel the maintenance policy and sought a refund of the $1,698.00. Respondent was willing to rescind the maintenance policy and return the contract price, less the sum of $1,260.00 for the value of the work approved by Ms. Custer and performed by Respondent. 8. Ms. Custer authorized the work performed by Respondent. Therefore, Respondent is entitled to payment for that work as agreed to in the Service Order Invoice. 9. The maintenance policy states that Respondent will perform two annual inspections “approximately” six months apart. The evidence of record does not support a finding that Respondent breached the maintenance policy by failing to perform a subsequent inspection. 10. Complainant complains that she and Ms. Custer were pressured into accepting the maintenance policy without being given time to think about it. However, Complainant and Ms. Custer were free to accept or reject Respondent’s offer of the maintenance policy subject to the time constraints of the offer. The offer was only good for the day of the service call. 11. There is no evidence that Respondent deviated from any plans or specifications or failed to comply with any local building codes in this matter. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this 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 23, 2011.

/s/ Brian Brendan Tully 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