ALJDEC decisions subject to certification as final

2011A-6876-ROC · Registrar of Contractors · 2012-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2012, at 8:00 a.m. APPEARANCES: Carol A. Kumm (hereinafter “Complainant”), appeared on her own behalf. Rose Refrigeration Inc. (hereinafter “Rose”) appeared through its authorized representative, Matthew James Kungie. 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. Rose is the holder of License No. K-39.243605-D issued by the Registrar of Contractors. 2. This is a residential matter where Rose installed a new four-ton heat pump in Complainant’s residence. 3. Complainant was dissatisfied with Rose’s workmanship and with the failure of the new heat pump to adequately heat and cool her residence. 4. When Rose failed to fully resolve the problems with the new heat pump Complainant filed a formal Complaint against Rose 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 and on January 3, 2012, issued a written Corrective Work Order directing Rose to perform designated corrective work on Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: 1. I have no heat. My heat pump is on warranty … my contractor will not send a technician to get it repaired. Contractor corrected prior to the Jobsite inspection and no action required of the contractor.

2. This is a defective heat pump. It has a long history of history and I’ve enclosed a copy in the complaint. It appears that these items were corrected prior to this jobsite inspection and [I was] not able to confirm the homeowner’s allegation that the unit is defective. Therefore there is no action required by the contractor at this time.

3. I feel like Matt Kungle [sic] is washing his hands of any warranty work done by his company as there is no money in warranty work. I feel like I’ve been ditched (abandoned) and hung out to dry. The contractor did do the corrections and has shown up for the jobsite inspection and has not abandoned the project. Therefore there is no action required by the contractor.

Note these complaint items were number[ed] for clarity and a copy is attached to this CWO.

1a. A load analysis was not done, my return air measures 16” inches and the minimum for a 4 ton is 18” inches to operate at maximum efficiency. It is the opinion of this inspector that the contractor did not present/show the Homeowner a copy of the Manual-J and did not inform her that the return air duct was way undersized for a 4 ton unit and did not have the Homeowners sign off that they were advised that the 4 ton unit was and return air duct system were not recommended for the size of this house. Therefore the contractor is to correct by the appropriate manner.

2a. Rose Refrigeration was out to my house several times during the summer. First to replace a TXV valve and ramp down the air movement for noise and vibration, adjustment were made to adjust the 48% humidity in the house. It is the opinion of this inspector that this item is basically the same as item # 2, see item number #2.

3a. This unit came as a package. One item that included a new thermostat that Rose installed …was defective removed and installed my old [thermostat], but have never replaced the one that came with the unit. The contractor per a jobsite agreement will replace the thermostat that came with the unit with a new one.

4a. Fuse box? I don’t know what this is and it’s included in the proposal. I think it is the Electric Disconnect and the wip, and was not replaced. The Electric disconnect and the wip was not replaced, and the contractor per a jobsite agreement will correct by the appropriate means.

5a. P-trap or condensation line, this never replaced. The P-trap and the condensation line appear to be new and [I was] not able to confirm the homeowner’s allegations. Therefore there is no action required by the contractor.[1]

7. Inspector Geoffrey Galgan (hereinafter “Inspector Galgan”) testified that because Inspector Hennessy was no longer with the Registrar of Contractors, Inspector Galgan conducted an onsite pre-hearing inspection on July 3, 2012. Inspector Galgan stated that at the pre-hearing jobsite inspection, Complainant acknowledged that she had denied Rose access to her residence to fully comply with the terms of the Corrective Work Order because “it would not solve the problem.”[2] 8. Inspector Galgan testified that during the pre-hearing onsite inspection, Rose was willing to increase the size of the return air duct but that Complainant would not allow Rose access to her residence to install a larger return air duct. She did not want the work done because it would not resolve the problem.[3] 9. Inspector Galgan testified that all of the items set forth in the Corrective Work Order had been fully corrected except for item No. 1A.[4] 10. Complainant’s husband, Richard A. Rasmussen (hereinafter “Mr. Rasmussen”) testified that Complainant’s residence had a very high humidity level during the summer. Mr. Rasmussen acknowledged that there was an evaporative cooler on the residence but stated that it had not been utilized during the summer because it was inoperable.[5] 11. Complainant testified that she believes that the four-ton heat pump on her residence is too large for her home. Complainant agreed that all of the items of the Corrective Work Order had been corrected except for item 1A. Complainant acknowledged that she declined to allow Rose to even inspect her duct work system.[6] 12. Complainant’s denial of access to Rose is found to be unreasonable. Complainant’s unreasonable denial of access is found to preclude a finding that Rose failed to fully comply with the terms of the Corrective Work Order. 13. Robert Rose (hereinafter “Mr. Rose”) testified that he has been a licensed contractor for twenty two years and that before he was licensed; he had worked in the industry for over twenty years. Mr. Rose stated that he visited Complainant’s residence and observed that there was 48% humidity in Complainant’s residence. He stated that he changed the setting on Complainant’s thermostat and the change of temperature setting lowered the humidity by four percent in less than one hour.[7] 14. Mr. Rose testified that the likely problem with Complainant’s new heat pump system was lack of air flow.[8] Mr. Rose’s testimony is found to be credible and to conform to the terms of the Corrective Work Order. 15. Mr. Kungie testified that Rose no longer utilizes the computer program that failed to display Rose’s contractor’s license number with the acronym “ROC” on Rose’s business forms. Mr. Kungie testified that all of Rose’s business forms now fully comply with the provisions of A.R.S. §32- 1124(B).[9] 16. Although Complainant’s concerns, frustrations, and aggravation with the new heat pump in her home are understandable, construction work, such as that at issue herein, is not a perfect science. It is not uncommon in the industry to have corrections, repairs, or replacements of poor workmanship prior or subsequent to completion of a specified project, to bring the final work product up to appropriate industry standards. In this regard, Rose must be given a reasonable opportunity to fully comply with the terms of the Corrective Work Order. 17. There was no credible evidence of abandonment of a contract or refusal to perform. 18. Administrative notice is taken of Rose’s prior license record as reflected on the Registrar of Contractors’ public website on July 18, 2012. Such prior license record reflects that Rose’s License No. K- 39.243605-D is current. 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 has not born her burden to establish that Rose abandoned or refused to perform work on her heat pump. This Tribunal concludes that there is no violation of the charged provision of A.R.S. § 32-1154(A)(1) (abandonment or refusal to perform). 4. Complainant’s return air duct system is undersized for a four ton heat pump and there is inadequate air flow in Complainant’s residence. This Tribunal concludes that Rose violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 5. Rose failed to include the acronym “ROC” in front of its contractor’s license in violation of the charged provisions of A.R.S. § 32- 1154(A)(13), namely, A.R.S. § 32-1124(B). Credible testimony and evidence supported findings which establish that Rose has now brought its business forms into full compliance with the provisions of A.R.S. § 32- 1124(B). 6. Rose was denied reasonable access to correct the return air duct system in Complainant’s residence as required by the Corrective Work Order. This Tribunal concludes that no violation of the charged provision of A.R.S. § 32-1154(A)(23) is supportable in view of the unreasonable denial of access. RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, License No. K-39.243605-D of Rose Refrigeration Inc shall be suspended until the Registrar of Contractors receives and accepts written proof that Rose has fully complied with the terms of the written Corrective Work Order or that it was denied reasonable access to Complainant’s residence to perform the corrective work directed by the Corrective Work Order. It is further recommended that if, on or before the effective date of this Order, Rose fully accomplishes the above described corrective action or is denied reasonable access to Complainant’s residence, then the above provided License suspension shall not take place and that this matter shall be closed. 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 20, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit R-1 (1/3/12 Corrective Work Order). [2] 7/6/12 Hearing Record (hereinafter “H.R.”) at 22:40-22:52. [3] H.R. at 27:11-27:31. [4] H.R. at 27:56-28:14. [5] H.R. at 30:27-30:47. [6] H.R. at 38:00-38:40. [7] H.R. at 1:21:20-1:21:51. [8] H.R. at 1:35:02-135:10. [9] H.R. at 1:55:55-1:57:00.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826