ALJDEC decisions subject to certification as final

2012A-2589-ROC · Registrar of Contractors · 2013-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 23, 2013

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by corporate President and Qualifying Party Robert Howells.

WITNESSES: Phil Coscia, ROC Inspector Linda Navasaitis Robert Howells

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging failure to follow plans and specifications and alleging use of poor workmanship with regard to repair and remodeling of air duct work at Complainant’s house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (“Registrar” or “ROC”) into the record, along with an exhibit notebook prepared by Complainant. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violations. FINDINGS OF FACT 1. Respondent is the holder of License No: K-39.142646-D, a dual air conditioning and refrigeration contracting license issued by the Registrar. Robert Howells is the Qualifying Party on the license. 2. Respondent did work at Complainant’s house under the City of Phoenix Weatherization Program in 2011. Respondent was hired by the general contractor on the project to reset the roof A/C unit as a downdraft and redo the ductwork in the house. After Complainant filed a complaint with the ROC about Respondent’s work, Inspector Phil Coscia observed the work at a jobsite inspection and issued a June 6, 2012 letter stating his findings as follows (findings are in bold type): The respondent’s installation of the gas-pac unit and related components were found to meet compliance with the Workmanship Standards for Licenses Contractors, which on Page 3 reads:

6. Possible Deficiency- Air conditioner does not adequately cool structure. Acceptable Tolerance - Unit should cool structure 30º (32º in Scottsdale) lower than outside air temperature when measured in center of room at 5' height. Minimum indoor temperature should be 78º.

The inspector confirmed the unit is cooling the rooms in the home more than 30º lower than the outside temperature and below the required 78º. In addition, the temperature variance between the rooms was approximately 2° to 3°. No corrective work is required by the respondent

In view of the above, the inspector cannot support a finding that respondent is in violation of the §32-1154 subsection A. (3) (workmanship rule) in regards to the following allegations: (1, 4, 8, 9, and 10)

Complaint No 1: The 5 ton unit is incorrectly sized for my home.

Complaint No 4: Duct sizes are not correct for room sizes and cooling requirements. The duct sizes are improper for the room’s requirements and usage. Example: Bathroom 4’x7’ bathroom has 119 CFM of air. The ducts are collapsed in places and oversized in length and diameter for the room’s requirements. From the main home attic to the back south zone there are two 90 degree bends in addition to 29’ duct line on a flat roof to the attic holding another 20 of duct. This is restricting the required air causing an increase of air to the main home causing too much air and a higher operating pressure that is not adjustable in separate rooms with registers.

Complaint No 8: Main plenum doesn’t allow for the box to pressurize. “The main plenum has a large duct running off of the end of the box not allowing the box to pressurize. Complaint No 9: Not enough air exchanges are happening in den. The return ducts are not balanced so the zone 3 is not getting enough air exchanges. Complaint No 9: “The manifold is unnecessary and is causing more static.

Complaint No 10: Thermostat is not reading temps in den so house is not cooled equally. “The thermostat that operates the 5 ton unit is in a location that cannot consider all the temperature zones requirements for the construction of this Historic Home. So system is not placing comfort air in the rooms lived in most and too much air in areas not lived in. [pic]

The inspector cannot support a finding that respondent is in violation of the §32-1154 subsection A (2), (“Departure from or disregard of plans or specifications”… The respondent performed and completed the work that was required per the contract. No corrective action is required by the contractor on the following complaints: Complaint No 2: The pitch of this roof is not designed to support a live load of a 5 ton A/C-Gas Pac unit: ROC Inspector: prior to the respondent reinstalling the unit, structural work had been done to support the roof of the home. The contract did not call for the respondent to do structural repairs. Complaint No 3: Home was not considered for the 3 distinct zones of building materials. Nor was my home zoned per construction materials. “This unit is not capable to cool or heat the 3 construction zones of this Historic home. Zone 1 east Brick, Zone 2 west, south, north- facing glass and Zone 3 tight modern 2x6 constructions with modern insulation. These factors were not addressed prior to installation. ROC Inspector: The contract was clear in regards to the scope of work which called for the respondent to reinstall the existing unit. It appeared the City of Phoenix rejected the respondent’s recommendation and was only willing to have the existing unit reinstalled. The contract did not call for the respondent to install a zoned system in the home. [pic]

No violations of workmanship standards were confirmed and at this time, no corrective is required by the contractor on the following: (Complaints 5, 6 & 11) Complaint No 5: Ducts design is not balanced for room cooling requirements. “Contractors told me not to adjusting the registers to balance air in rooms. That are OBD design would raise the static beyond Manufactures pressure normal running rating of 5. The system is certified at .975 by Tab Technology July 28 2011. ROC Inspector: The Workmanship Standards for Licenses Contractors requires that contractors are responsible for balancing dampers, registers, and other minor adjustments one time for one season. It appears that respondent has met this requirement. Also, the ROC has no workmanship standard that addresses the static pressure at which a forced air system must operate. Complaint No 6: When unit is running the rafters shake on roof and wood floor vibrate. When this oversized unit on the roof is running, the high pitch of the roof is trembling, new cracks in the walls appeared, and the Historic hardwood oak wood floors vibration is causing separation between the boards. My bed basically vibrates at night with the system running in June thru September of 2011. Remember, RDA had to come back and re-support the load bearing pier beneath the home. ROC Inspector: During the inspection the unit appeared to operate normally. No unusual noise was evident and the inspector cannot determine that any the operation of the unit is causing damage to the structure. Complaint No 11: Roof ducts not R-8 per contract: ROC Inspector: In order to determine the R-value of sprayed polyurethane foam (SPF), it would be necessary to know the density or weight (mix) at which it was applied. In absence of this, it is not clear what the R-value of the foam.

Pursuant to jobsite inspection the inspector found the unit operating normally. No statute violations or workmanship deficiencies were confirmed. In view of this, the inspector cannot conclude that the unit is the cause of the high utility bills. Also, the inspector does not have the authority to resolve the complaint matter below. Complaint No 7: APS bill went up 28 % in 3 month of use with outhouse being cooled comfortably. “Running the system for June, July, Aug, and Sept of 2011, my APS electric bill went up 28%. This is from the unit starting and stopping without cooling and heating the home comfortably and effectively. The thermostat was set at 84 degrees. Zone one was cool but the Zone 3 was very hot. This high electric bill was from the system starting and stopping without cooling to heating the home comfortably and effectively.

Based on the above, a citation will not be issued against the contractor at this time. . . .

Thus, after looking at all 11 issues raised by Complainant, Inspector Coscia found no workmanship or other violations and did not order Respondent to perform any corrective work. Complainant requested a hearing. 3. Inspector Coscia testified at hearing in support of his findings as stated in the June 6, 2012 letter. He testified that the applicable standard for workmanship is performance based and consists of the ability to cool the house at least 30 degrees lower than the outside ambient temperature as stated in the ROC’s written workmanship standards that he quoted in his letter. 4. Complainant submitted a “Test and Balance Report” from TAB Technology, Inc.[1] The face of the report states that the system is balanced. It does not speak to performance in terms of room temperatures, which is the standard used by the ROC. 5. Complainant’s notebook has other documents from licensed HVAC contractors,[2] but those documents do not speak to room temperatures and, therefore, do not challenge Inspector Coscia’s findings that the system cools the house enough to meet the written ROC standard. 6. Complainant did not offer any statement, either live testimony or in written form, that put forth a different conclusion than Inspector Coscia’s from a person with experience and knowledge of the workmanship standards in Arizona. 7. The greater weight of the evidence supports Inspector Coscia’s findings and conclusion that Respondent’s work meets ROC standards. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainants have met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(2) (requiring compliance with plans, specifications, and building codes), and A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship). The evidence shows that Respondent has met plans, specifications, building codes, and workmanship standards. 3. There being no violations found, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2012-2589 against Respondent Out West Heating and Cooling, 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, February 11, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A-6 in Complainant’s notebook. [2] Exhibits A-7 and A-8, [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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