ALJDEC decisions subject to certification as final

2011A-4493-ROC · Registrar of Contractors · 2012-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 11, 2012, at 1:00 p.m. APPEARANCES: Veronica H. Anderson (hereinafter “Complainant”) appeared on her own behalf. Climate Care Pro LLC (hereinafter “Climate Care”) appeared through its authorized representative, Bartosz L. Wojtaszyk. 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. Climate Care is the holder of License No. K-79.263346-D issued by the Registrar of Contractors. 2. This is a residential matter where Climate Care added a new five-ton Trane outside condenser and a new five-ton evaporative coil to Complainant’s existing air conditioning system. Complainant continued to experience problems with her air conditioning system and complained to Climate Care. When Climate Care failed to resolve the problems with her air conditioning system to her satisfaction, Complainant filed a formal Complaint against Climate Care with the Registrar of Contractors. 3. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection. On October 27, 2011, Inspector Grochocki decided to close the case as a result of the jobsite inspection. 4. Complainant disagreed with Inspector Grochocki’s decision to close the case and requested an administrative hearing, stating that Climate Care “is no longer willing to resolve issues they stated (oral and written) they would.”[1] 5. Inspector Grochocki testified that initially no jobsite inspection was going to be performed because another contractor had already performed work on Complainant’s air conditioning system. Inspector Grochocki stated that he conducted an onsite inspection at Complainant’s residence on October 26, 2011, to determine if the air conditioning components installed by Climate Care were compatible with Complainant’s existing air conditioning system.[2] 6. Inspector Grochocki testified that Complainant’s original air handler was not replaced and that the air handler was not part of the parties’ construction agreement. Inspector Grochocki stated that he was unable to determine compatibility issues and that he could not confirm any statutory violations by Climate Care.[3] 7. Inspector Grochocki testified that the parties reached a Settlement Agreement during the jobsite inspection wherein Climate Care agreed to pay Complainant $750.00 and Complainant agreed to accept the payment and close the complaint. Inspector Grochocki testified that his determination to close the case on October 27, 2011, was based upon the parties’ Settlement Agreement.[4] 8. Complainant testified that Climate Care installed the air conditioning equipment at her residence on July 22, 2010. Complainant stated that she only utilized her air conditioning system for “about a month” during 2010. In June 2011, she contacted Climate Care to see if it would be alright to turn her air conditioning system on. Climate Care returned Complainant’s telephone call on June 18, 2011, and informed Complainant that she could start the system, but that she should change the filter. Complainant stated that her air conditioning system was continuously running. On June 30, 2011, Complainant’s air conditioning system shut down.[5] 9. Complainant notified Climate Care of the problem on June 30, 2011, and Climate Care stated that it could not be at Complainant’s residence until July 7, 2011. On July 7, 2011, Climate Care inspected Complainant’s air conditioning system and opined that the air conditioning unit shut down because the coil was dirty. Climate Care serviced Complainant’s air conditioning system and charged her $162.50 for the service.[6] 10. On July 17, 2011, Complainant’s air conditioning system shut down for a second time. Complainant contacted Climate Care. Climate Care agreed to inspect the unit on July 18, 2011. On July 18, 2011, Climate Care performed its inspection of Complainant’s air conditioning unit. Climate Care stated Complainant had “high pressure” and Climate Care released excess Freon from the air conditioning system. Complainant was dissatisfied with Climate Care’s workmanship and contacted the manufacturer, which provided a list of several alternative local HVAC contractors.[7] 11. Complainant then contacted an alternative HVAC contractor. On July 19, 2011, Tri-Cor Inc. (ROC License No. K-39.143626-D) performed an annual service on Complainant’s air conditioning system and provided Complainant with an extended warranty for $819.00.[8] 12. Complainant stated that she did not accept Climate Care’s agreed upon $750.00 payment because Climate Care wanted a written release before Climate Care would give her the check.[9] 13. Complainant testified that Climate Care did not inform her that she should have had a new air handler installed in her residence when the new condenser and evaporative coil were installed in her residence.[10] 14. Bartosz L. Wojtaszyk (hereinafter “Mr. Wojtaszyk”) testified that Climate Care offered Complainant three different alternatives for work on her existing air conditioning system and that Complainant chose to have her outside unit and the inside coil replaced. Complainant declined to accept the option of having the entire system replaced. Mr. Wojtaszyk stated that the blower was left alone because at that time, there was nothing wrong with the system.[11] 15. Mr. Wojtaszyk testified that the system worked fine for approximately one year. Mr. Wojtaszyk stated that Climate Care received a telephone call from Complainant on June 22, 2011, stating that Complainant’s air conditioning system was not shutting down when it reached a selected temperature. Mr. Wojtaszyk testified that he informed Complainant that if the problem was Complainant’s thermostat, there would be a service charge because Climate Care did not install Complainant’s thermostat.[12] 16. Mr. Wojtaszyk testified that Climate Care inspected Complainant’s air conditioning system on July 7, 2011, and found that nothing was wrong except that the coil was dirty and clogged. After Climate Care cleaned the coil, the air conditioning system operated properly. Climate Care then received a call from Complainant on July 17, 2011, stating that her air conditioning system was not running. Climate Care then returned to Complainant’s residence at 9:30 a.m. on July 18, 2011.[13] 17. Mr. Wojtaszyk stated that he inspected Complainant’s air conditioning system and found nothing wrong with the air conditioning system. Mr. Wojtaszyk opined that the problem with Complainant’s air conditioning system was Complainant’s existing air handler.[14] 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. Complainant failed to sustain her burden of proof to establish that Climate Care departed from or disregarded plans or specifications or any building codes in its construction work at Complainant’s residence. This Tribunal concludes that Complainant failed to establish that Climate Care violated the charged provision of A.R.S. § 32-1154(A)(2). 4. Complainant failed to sustain her burden of proof that Climate Care failed to perform its construction work in a professional and workmanlike manner or that the new condenser and coil installed by Climate Care were incompatible with Complainant’s existing air handler. This Tribunal concludes that Complainant failed to establish that Climate Care violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108. RECOMMENDed order In view of the foregoing, it is recommended that this matter shall be dismissed.

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, July 26, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/7/12 Request for Administrative Hearing. [2] 7/11/12 Hearing Record (hereinafter “H.R.”) at 14:47-15:23. [3] H.R. at 15:24-15:38. [4] H.R. at 15:31-16:07. [5] H.R. at 20:40-21:39. [6] See Exhibit C-6 (7/7/11 Climate Care Invoice). [7] H.R. at 26:00-28:20. [8] See Exhibit C-16 I7/19/11 Tri-Cor, Inc. Invoice). [9] H.R. at 30:58-32:04. [10] H.R. at 50:00-51:13. [11] H.R. at 1:01:52-1:02:40. [12] H.R. at 1:02:46-1:03:30. [13] H.R. at 1:04:00-1:05:20. [14] H.R. at 1:04:55-1:07:11,

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