ALJDEC decisions subject to certification as final

2011A-480-ROC · Registrar of Contractors · 2012-01-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by attorney Gary Michael Smith, Smith & Craven PLLC, accompanied by corporate President and Qualifying Party Tom Smedley.

WITNESSES: Jim Dimond, ROC Inspector

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming poor workmanship by Respondent with regard to installation of an air conditioning system at her home. A Corrective Work Order was issued, and Complainant alleges that Respondent has not complied with it. 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 C39R.154157-R issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair air conditioning systems (excluding solar) for residential properties. Respondent’s Qualifying Party is Tom Smedley. 2. On December 20, 2010, Respondent installed a new Trane split system air conditioner in Complainant’s home. In January 2011, Complainant filed a complaint with the ROC alleging several problems with the system components.[1] Only three of those problems were still at issue at the hearing: (1) Bent fins on the indoor unit, (2) Coils on the outdoor unit are excessively matted, and (3) the indoor unit runs too loudly. 3. In late March 2011, ROC Inspector Jim Dimond inspected the air conditioner at Complainant’s house and issued a Corrective Work Order (“CWO”) that ordered Respondent to correct the bent fins on the indoor unit (Item 1) and the matted coils on the outdoor unit (Item 3). Inspector Dimond did not conclude that the unit was too loud (Item 2) and, therefore, did not order any correction with regard to that item. 4. On October 26, 2011, Inspector Dimond performed a pre-hearing inspection at Complainant’s house. Complainant and Respondent were present for that inspection, as well as representatives from Trane, the manufacturer of the indoor and outdoor units.[2] The Trane representatives explained to Inspector Dimond that the number of bent fins was acceptable to them and did not negate any warranties. According to the Trane representatives, it was not a defective condition. They also demonstrated that air was flowing through the fins. Inspector Dimond relied on the Trane representatives’ statement that the warranty was still in effect for the unit,[3] and he changed his opinion about Respondent’s workmanship, concluding that correction was no longer required. 5. Similarly, at the outside unit, the Trane representatives explained to Inspector Dimond that the matting was not excessive according to their standards and that the unit was fully under warranty. Inspector also changed his opinion with regard to that item, acknowledging that no corrective work was needed. 6. Inspector Dimond relied on the manufacturer’s (Trane) opinion that the units were not defective as installed in Complainant’s home and that they were fully warranted against any defective conditions. 7. Finally, with regard to the noise level of the unit, Inspector Dimond did not find it to be excessive. He noted that there was tape used on the joints of the indoor unit to help reduce air leakage and noise, and that this was common in the industry, especially if the air handler is installed in a closet as is Complainant’s. 8. While questioning Inspector Dimond, Complainant noted that the noise level of the unit is much less, and is acceptable to her, when the unit is taped as opposed to when the tape is removed. She wants the unit to be quiet without the tape. However, taping the unit is a common industry practice and is within industry standards according to Inspector Dimond. 9. Because Complainant’s questions to Inspector Dimond appeared to be based on standards other than workmanship, Complainant was given further opportunity to express what her claims were after Inspector Dimond testified. After she did so, this tribunal concluded that Complainant’s complaints are against Trane and not Respondent. The evidence was then closed and the hearing adjourned. 10. The evidence shows that the units, both indoor and outdoor, were installed according to the manufacturer’s specifications and the manufacturer has warranted them against any defects. The evidence does not show that there is an excessive noise level or excessive bent fins or excessively matted coils. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] Complainant has 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. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. Subsection (A)(23) requires a contractor to comply with a CWO issued by the ROC. 3. The evidence does not show that Respondent performed below minimum workmanship standards or failed to comply with a properly issued CWO. Respondent has reasonably relied on the manufacturer’s opinion that the equipment is installed according to specifications and will be warranted against defects. 4. There being no violation, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2011-480 against Respondent ABC Air Conditioning, Inc. 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, January 6, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] An addendum was later added to the complaint, but that issue was corrected before the hearing date. [2] Those representatives, Dan Harden and Ryan Murray, were also present for the hearing. [3] In fact, it was undisputed that Trane had extended Complainant’s warranty from 1 to 5 years. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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