ALJDEC decisions subject to certification as final

2011A-3213-ROC · Registrar of Contractors · 2012-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2012, at 1:00 p.m. APPEARANCES: Corinne M. Zichelli and Marie A. Zichelli (hereinafter “Complainants”) appeared through Corinne M. Zichelli. C Y Quality Water and Services (hereinafter “CY Quality”) appeared through its owner, Christopher Lee Yonsetto. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. CY Quality is the holder of License No. C37R.201904-R issued by the Registrar of Contractors. 2. This is a residential matter where CY Quality installed a water filtration system in Complainants’ residence for the sum of $1,395.00. 3. Complainants were dissatisfied with the operation of the water filtration system and demanded their money back. 4. When CY Quality refused to return the money that Complainants paid for the water filtration system, Complainants filed a formal Complaint against CY Quality with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, James Hennessy (hereinafter “Inspector Hennessy”), conducted an onsite inspection. 6. Inspector Hennessy determined that no citation should be issued based on the following: The following items this inspector was not able to either confirm or deny the Homeowner[s’] allegations.

1. Contractor installed CY #3000 water filtration system, and it never worked. 2. System does not flush as the Contractor stated. 3. Hard water build up on all facets in the house[.] 4. Water smells bad. 5. Contractor installed a release valve in my TOTO toilet and it did not work. This Complaint item was corrected by others prior to the Jobsite inspection. Therefore there is no action required of the contractor at this time. 6. Since he paid into your fund we request to be reimbursed the $1395.00 dollars for the water filtration system and $68 dollars for the plumbing part. To order the Contractor to reimburse the [C]omplainant[s] is not in the jurisdiction of this inspector. Therefore there is no action required of the contractor at this time.

7. Complainants disagreed with Inspector Hennessy’s determination not to issue a citation against CY Quality’s contractor’s license and added new items to their complaint. Inspector Hennessy then conducted a second onsite inspection and inspected the new complaint items and re-inspected the original complaint items. Inspector Hennessy did not change his determination not to issue a citation. 8. Complainants complained to the Registrar of Contractors and a third onsite inspection was conducted by Agency Inspector, Phil Coscia (hereinafter “Inspector Coscia”). 9. Inspector Coscia inspected all of the items in Complainants’ complaint and determined that no citation should be issued on the following basis: It appears the water filtration and conditioning system, sold and installed by the [R]espondent was advertised to remove environmental pollutants, harsh chemicals such as chlorine and control microorganisms in the water supply. However the product brochure states that it reduces water hardness problems, which to this inspector indicates it does not totally eliminate hardness. It was evident from the inspection that the unit, which allegedly was initially programmed to flush the unit, has not been flushed in some time. Flushing maintenance is necessary to ensure the unit functions as it was designed. At this time, the inspector did not determine the unit will not function as designed.

The [R]espondent had verbally told the [C]omplainant and Inspector Hennessey that he would reimburse Mrs. Zichelli $68.00 that she paid to have [R]espondent’s previous toilet repair corrected. That being the case, as a good faith gesture, the [R]espondent should honor that agreement.

10. Complainants disagreed with Inspector Coscia’s determination not to issue a citation against CY Quality’s contractor’s license and requested an administrative hearing. 11. Inspector Coscia stated that he was brought into the case as an Inspector following disagreements between Complainants and Inspector Hennessy. Inspector Coscia testified that he performed an onsite inspection at Complainants’ residence on September 29, 2011. Inspector Coscia stated that the water filtration system in Complainants’ residence is not a water softener system. Inspector Coscia testified that he was unable to verify or to confirm that the water filtration system in Complainants’ residence was not operating properly.[1] 12. Inspector Coscia testified that the City of Peoria is a hard water area. Inspector Coscia stated that the water filtration system in Complainants’ residence would not reduce water hardness. Inspector Coscia testified that the flushing of the water filtration system was a maintenance issue that is the responsibility of the owner.[2] 13. Inspector Coscia acknowledged that he had suggested that Complainants have their water analyzed.[3] 14. Corinne Marie Zichelli (herein after “Ms. Zichelli”) testified that after her father became ill and could no longer lift salt bags for a water softener system, Complainants replaced the water softener system with a water treatment system. Complainants noticed that residue had built up in the eight-year-old water treatment system and Complainants contacted CY Quality for a service call. CY Quality performed the service call and recommended that Complainants install a CY 3000 filtration system in their residence that would be superior to the existing water treatment system. Ms. Zichelli stated that based on CY Quality’s advice, Complainants contracted with it to install the CY 3000 water filtration system that CY Quality recommended.[4] 15. Ms. Zichelli testified that the CY 3000 water filtration system installed by CY Quality has never operated in a satisfactory manner. Ms. Zichelli stated that Complainants are still getting “debris” in their water. Ms. Zichelli testified that the CY 3000 water filtration system installed in Complainants’ residence is not capable of reducing the “hardness” in their water.[5] 16. Ms. Zichelli acknowledged that CY Quality installed the CY 3000 water filtration system in a workmanlike and professional manner. Ms. Zichelli stated that her complaint was that the CY 3000 water filtration system was not capable of performing the function promised by CY Quality.[6] 17. Ms. Zichelli testified that CY Quality’s advertisements were false and deceptive because the “before” and “after” photographs in CY Quality’s advertisement that showed the beneficial results of using a CY 3000 water filtration system do not match the results achieved by the CY 3000 water filtration system installed in Complainants’ residence.[7] 18. Ms. Zichelli testified that the CY 3000 water filtration system installed by CY Quality requires an inordinate amount of homeowner maintenance. Ms. Zichelli asserted that CY Quality has done nothing to satisfy Complainants’ dissatisfaction with the operation of the CY 3000 water filtration system in Complainants’ residence. Ms. Zichelli acknowledged that she was aware that the CY 3000 water filtration system installed in Complainants’ residence was not a water softener system.[8] 19. Marie A. Zichelli testified that she is a 99-year-old widow on a fixed income and that she would like to be reimbursed for the cost of the water filtration system.[9] 20. Michael Christopher Blinn (hereinafter “Mr. Blinn”) testified that he was present for one of the service calls performed at Complainants’ residence and that he verified that the CY 3000 water filtration system was flushing properly.[10] 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. There was no credible evidence that CY Quality failed to perform its installation work of the CY 3000 water filtration system in Complainants’ residence in less than a professional and workmanlike manner. This Tribunal concludes that Complainants failed to establish that CY Quality violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[11] 4. The credible evidence of record failed to support a finding that CY Quality provided false, misleading, or deceptive advertising to Complainants or the general public. This Tribunal concludes that Complainants failed to establish that CY Quality violated the charged provision of A.R.S. § 32-1154(A)(16).[12] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, shall be dismissed on the effective date of this Order. In the event of certification of this 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 the certification.

Done this day, August 27, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 8/13/12 Hearing Record (hereinafter “H.R.”) at 16:05-19:00. [2] H.R. at 19:30-24:58. [3] H.R. at 28:15-29:00. [4] H.R. at 29:43-31:15. [5] H.R. at 31:18-36:20. [6] H.R. at 37:48-38:21. [7] H.R. at 38:22-38:37 [8] H.R. at 43:16-52:08. [9] H.R. at 56:40-56:53. [10] H.R. at 57:51-1:02:04. [11] A.A.C. R4-9-108. Workmanship Standards provides as follows: A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[12] A.R.S. § 32-1154(A)(16) includes among the grounds for disciplinary action against a contractor’s license, false, misleading or deceptive advertising whereby any member of the public may be misled and injured.

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