ALJDEC decisions subject to certification as final

2011A-6585-ROC · Registrar of Contractors · 2012-11-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 1, 2012 APPEARANCES: Complainants Nancy and Patricia Solano appeared on their own behalf; Respondent Maracay Construction LLC appeared through Shawn Hanks, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. B.172120-R to Respondent Maracay Construction LLC (“Respondent”). The Registrar received a Complaint against Respondent from Nancy and Patricia Solano (“Complainants”) regarding the air conditioning units included in the new construction of their home at 5408 West Coles Road, Laveen, Arizona.[1] The complaint included 21 numbered issues. After the Registrar assigned the Complaint to its inspector, Rick Oelke, for investigation, he performed a jobsite inspection. In the Corrective Work Order issued on December 1, 2011, Inspector Oelke indicated that the operation of the air conditioners could not be evaluated at the time of the inspection due to cool weather conditions. Complainants were advised they could request further inspection within six months, if necessary. Additionally, Respondent was ordered to perform the following: a. Provide Complainants with “an ACCA certified Manual-J load calculation to support the design and installation of the cooling system in the home”; b. Verify proper operation and installation of the fresh air intake ducting; c. Provide proper attic access as required by applicable building code; d. Correct the insulation baffle installation by proper means; and e. Verify proper placement of the O’Hagin vents and make correction as required. No evidence was submitted to establish that Complainants requested further inspection of the air conditioners at their home within six months. Complainants requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32- 1154(A)(23). 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 November 1, 2012. Because Inspector Oelke was no longer employed as an inspector, Inspector Randy Cason testified about the Registrar’s standards. Complainants submitted one exhibit, testified on their own behalf, and presented the testimony of Troy Lees with Howard Air. Respondent submitted eight exhibits and presented the testimony of Shawn Hanks, its Qualifying Party; James Attwood, Construction Engineer with Respondent; Ty Eshelman, Mechanical Engineer with Chaz Roberts Air Conditioning; and Montez Love, Principal of Love Engineering. Hearing Evidence Complainants closed on the purchase of their new home in November 2009. Complainants indicated that in the early summer of 2010, their utility bill was “skyrocketing” and the humidity level in the home was uncomfortable. Therefore, in May 2010, Complainants reported a problem with the air conditioning system to Respondent. According to Complainants, they noticed the air conditioning units “short cycling” and “running constantly.” Further, Complainants stated that the units failed to cool the home properly and that the humidity level was too high to be comfortable in the home. In the summer of 2010, Complainants had two separate companies inspect the air conditioning system to determine if there was a problem. Desert Valley Aire, Inc., License No. C39R.220939-R, (“Desert Valley”) reported that the air conditioning units were oversized. Complainants had seven tons of installed load capacity and, according to Desert Valley’s calculations, the home only required five tons of load capacity. Complainants reported that Desert Valley informed them that the oversized units were the cause of the short cycling. Howard Air, License No. C39R.091675-R, also reported to Complainants that the home only required five tons of load capacity based on the Manual-J calculations. Respondent serviced the units on multiple occasions, offered additional O’Hagin and eave vents, and replaced thermostats attempting to resolve Complainants’ issues. Respondent also contacted the utility company and requested the high and low electric bills for eight other homes in the area built by Respondent with the same floor plan and the added guest suite option. Respondent notified Complainants that the average high electric bill was $420.00 and the average low electric bill was $91.00. Complainants had reported their average high electric bill was $400.00 and their average low electric bill was $90.00. Respondent also informed Complainants that the American Society of Heating Refrigeration and Air-Conditioning Engineers (ASHRAE) standards provide a comfortable level of humidity in a residential home at 78° to 79° should be in the 30% to 60% range. Complainants had reported humidity levels between 45% and 55%. Complainants testified that the unit was able to cool the home to 78°. Inspector Cason testified that the Registrar’s workmanship standards only require air conditioning units to cool to 78°.[2] Inspector Cason testified that, based on his findings during the pre- hearing inspection: a. Complainants had been provided the Manual-J load calculation; b. The fresh air intake ducting had been corrected; c. Complainants declined to have the attic access installed; d. The insulation baffles had been corrected; and e. Respondent had properly installed additional vents. According to Inspector Cason, all required items on the Corrective Work Order had been complied with as of the pre-hearing inspection. Respondent indicated that the plans for the home had been submitted to the proper entity and had been approved. Further, Respondent testified that the air conditioning unit system installed in the home was in conformity with the approved plans. Complainants argued that the Manual-J load calculations were inaccurate because they did not consider the house as it sat, but were based on a “worst case scenario” relative to the orientation of the house. Complainants testified that their home was not built with the orientation reflected in the calculations and, thus, their air conditioning unit was too large. Mr. Eshelman and Mr. Love testified that, when designing tract housing, the industry standard was to submit a singular set of plans for a particular floor plan. In so doing, the Manual-J load calculations are based on a “worst case scenario” relative to the orientation of the house. This prevents the builder from having to submit, and the city having to receive and approve, numerous sets of plans for the same basic model based on the specific orientation and other added options of each home being built. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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). “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. Complaints 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 air conditioning system on their house. 4. Complainants did not establish that the air conditioning system was too large for the size of their 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. 5. Complainants did not establish that Respondent failed to take appropriate corrective action to comply within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23). 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 Complainants Nancy and Patricia Solano’s Complaint in Case No. 2011-6585 against Respondent Maracay Construction LLC’s License No. B.172120-R. 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, November 21, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] The complaint also included allegations relating to the garage door. Those issues were resolved prior to the jobsite inspection and were not raised at the hearing. [2] 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°.”).

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