ALJDEC decisions subject to certification as final

2011A-6202-ROC · Registrar of Contractors · 2012-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2012, at 1:00 p.m. APPEARANCES: Complainant Jennifer Arrowood appeared on her own behalf; Respondent Cool Ace Air, L.L.C. dba Ace Air appeared through Kris Ohannessian, its Controller. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 39.242376-D for dual air conditioning, refrigeration and heating to Cool Ace Air, L.L.C. doing business as (“dba”) Ace Air (“Respondent”). The Registrar received a complaint against Respondent from Jennifer Arrowood (“Complainant”) regarding Respondent’s installation of an air conditioning unit on a house that Complainant owned at 3915 East Mercer Lane, Phoenix, Arizona that was “too small” and “incorrectly installed.”

The Registrar assigned the complaint to its inspector, Jim Dimond, for investigation. Inspector Dimond performed a jobsite inspection. Inspector Dimond informed the parties in a letter that because the unit that Respondent replaced was a 4-ton unit and his research indicated a 4-ton unit was appropriate for the size of Complainant’s house, he had determined that the complaint should be dismissed unless Complainant requested a hearing. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on May 18, 2012. Inspector Dimond testified. Complainant submitted five exhibits and presented the testimony of herself and her mother, Michelle Stephens, who communicated with Respondent on Complainant’s behalf because she does not live in the Phoenix metropolitan area. Complainant also presented the testimony of four of Respondent’s employees pursuant to her subpoenas, as follows: (1) Skylar Lundberg, Respondent’s service technician who responded to Ms. Stephens’s initial complaint that the old unit was tripping the breakers and provided Respondent’s price for a new 4-ton unit; (2) Tyler Billings, Respondent’s service technician who fabricated the elbow beneath the unit on the metal stand on the roof to connect to Complainant’s existing ductwork; (3) Todd Ferguson, Respondent’s Customer Service Manager, who responded to Ms. Stephens’s complaints after the new unit was installed; and (4) K.J. Jin, who was also employed in Respondent’s Customer Service Department. Respondent submitted four exhibits and presented the testimony of Kris Ohannessian, its Controller. Hearing Evidence On August 25, 2011, Mr. Lundberg and another service technician on Respondent’s behalf responded to Ms. Stephens’s complaint that the old air conditioning unit was repeatedly tripping the breaker at Complainant’s house. After Respondent’s technicians determined that the old air conditioning unit on the house required replacement, Mr. Lundberg submitted a written proposal for Respondent to install a new 4-ton Goodman air conditioning unit on the house. Ms. Stephens signed to accept the written proposal on Complainant’s behalf. Respondent did not contract to clean or replace the ductwork, to install additional insulation, to perform an R-value analysis, or to perform any other work at Complainant’s house. The contract did not specify the degree to which the new unit would cool the house. On August 17, 2011, Respondent’s service technician, Raul, on Respondent’s behalf, responded to Ms. Stephens’s complaint that the new 4- ton Goodman air conditioning unit would not cool Complainant’s house below 77°. Raul checked the ductwork and adjusted the registers at Complainant’s house. Ms. Stephens testified that Raul and Respondent’s service technician, Chuck, told her that the air conditioning unit was not installed correctly and that the ductwork that Respondent fabricated to connect it to the existing ductwork was crimped. Mr. Billings denied that Respondent fabricated any ductwork at Complainant’s house, with the exception of the elbow underneath the metal roof stand. Respondent’s service technicians made numerous trips to Complainant’s house over the next week to investigate Ms. Stephens’s repeated complaints of inadequate cooling. Complainant testified that the new unit was always able to cool her house to 77°. Inspector Dimond testified that the Registrar’s workmanship standards only require air conditioning units to cool to 78°.[1] Complainant attached to her complaint a copy of a Performance Data Cooling report from Comfort Engineering, Inc. dba Scottsdale Air Heating & Cooling, License No. C39R.101485-R, for Outdoor Model 4YCC3048A1, that Complainant alleged showed a greater cooling capacity than the 4-ton Goodman unit that Respondent installed. Inspector Dimond testified that the model number signified a 4-ton unit. Complainant also attached to her complaint the record of a service call from James at Just Air, L.L.C., License No. C39R.221611-R, that included the handwritten notation, “Found system too small for house.” The record does not show James’ full name, qualifications, or the bases for his expressed opinion. Inspector Dimond testified that Ms. Stephens claimed that the size of the house was 1869 square feet, an MLS listing that Complainant attached to her complaint showed the size as 1753 square feet, and the county assessor showed the size as 1785 square feet. Inspector Dimond testified that if the actual livable square footage of the house were 1869 square feet, a 5- ton unit might be required. Inspector Dimond testified that if the MLS listing and the county assessor’s record were closer to the actual size of the house, a 4-ton unit was sufficient. Complainant’s house was built in 1962. Respondent’s employees testified that the new unit would be more efficient if Complainant replaced her single-pane windows, replaced existing ductwork, and installed additional insulation in the house. Complainant submitted Respondent’s promotional brochure entitled, “Diamond Quality Service, ‘The Multi-Faceted Install Process.’” The brochure touted Respondent’s service technicians’ experience and professionalism and stated that its goal was to exceed customers’ expectations. Ms. Stephens testified that based on the brochure, she would have expected Respondent’s technicians to perform an R-value analysis, to carefully measure Complainant’s house, and to take other steps to insure that Respondent installed the air conditioning unit that would provide maximum cooling. Complainant testified that her complaint was about Respondent’s lack of professionalism, not just the undersized unit. Complainant testified that Respondent just replaced a 4-ton unit with a new 4-ton unit, rather than performing the analysis required to select the best unit for the house. Complainant requested that the Registrar require Respondent to replace the 4-ton unit with a 5-ton unit. / / / / / / / / / / / / CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] Complaint did not establish that Respondent departed from or disregarded any plans, specifications, or building codes in violation of A.R.S. § 32- 1154(A)(2) in its installation of the 4-ton Goodman air conditioning unit on her house. Complainant did not establish that the 4-ton Goodman air conditioning unit was too small for the size of her house or that Respondent’s installation of the unit violated industry standards or was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant Jennifer Arrowood’s complaint in Case No. 2011-6202 against Respondent Cool Ace Air, L.L.C. dba Ace Air’s License No. K-39.242376-D. 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, June 7, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Registrar of Contractors’ Workmanship Standards for Licensed Contractors at 3 (February 2009) (“Unit should cool structure 30° . . . lower than outside air temperature . . . . Minimum indoor temperature should be 78°.”). [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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