ALJDEC decisions subject to certification as final

2015A-4460-ROC · Registrar of Contractors · 2016-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2016 and August 3, 2016 APPEARANCES: Complainant Carlos Alberto Garcia was represented by Matthew Jones. Respondent Kaminsky Builders, LLC doing business as Air Command was represented by Tom Hall. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (Registrar) issued License Nos. 205393 and 206501 to Kaminsky Builders, LLC doing business as Air Command (Respondent). On or about August 7, 2015, Complainant Carlos Alberto Garcia (Complainant) signed a contract with Respondent to replace two air conditioner units that were over 20 years old. On or about August 13, 2015, Respondent installed the two new units. Nothing in the documentation related to the installation indicates any additional refrigerant was added during installation. After the installation of the air conditioner units, Complainant noted that one of the units did not seem to be cooling as well as the old unit that was removed. Complainant contacted Respondent on the same day the units were installed to report that one unit was not cooling well. Respondent sent two people to Complainant’s home and informed him that the unit was not working as well because it was excessively hot outside. After Respondent failed to address Complainant’s concerns, Complainant contacted Gryphon Air Repair, Registrar License # 251635, (Gryphon) to inspect the unit. On or about September 3, 2015, Gryphon noted following its inspection that it “checked out both systems and found the smaller unit to be low on refrigerant charge.” When Complainant notified Respondent about Gryphon’s findings, Respondent indicated that because another service provider had touched the unit, the warranty was voided and Respondent would not be back to work on the unit. On or about October 23, 2015, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the installation and operation of the air conditioner system. The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4- 9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 17, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

1. Smaller unit (3.5 ton) low on refrigerant charge by 2 lbs. possible leak. Check the system for leaks and verify that system is charged to the proper levels.

2. Replacement of unit in attic caused leak that stained the ceiling. Repair stain on ceiling in two locations by appropriate means so the stain is unable to be detected.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

3. Between March 1, 2016, and March 17, 2016, Respondent inspected the unit on one occasion. Complainant was not informed of any findings regarding the unit or corrective work performed to address the problem at that time. 4. On or about May 10, 2016, Investigator Grimm performed a compliance jobsite inspection. At that time, Investigator Grimm noted that the outside temperature was 99.5 degrees. When he entered the house at 2:00 p.m., the internal temperature was 78 degrees on the thermostat. The thermostat was turned down to 59 degrees; after 30 to 35 minutes, the temperature dropped one degree on the thermostat. Investigator Grimm noted that the unit “did not appear to make much change regarding dropping the temperature during our time in the home.” As to the stains on the ceiling, Investigator Grimm was shown other staining removed from the area of the unit and concluded that the staining was unrelated to Respondent’s installation. 5. On or about May 17, 2016, Complainant had Gryphon come back out to inspect the unit. At that time, Gryphon noted, “We added some refrigerant to the smaller a/c system. Small leak in the indoor coil.” The invoice indicated that 5 pounds of refrigerant were added to the system. 6. On or about May 23, 2016, Complainant had Gryphon come back out to inspect the unit. At that time, Gryphon noted, “We installed a can of leak lock with U.V. dye in the refrigerant system of upstairs east side unit. The unit is fully charged and sealed but not suspended and running loud.” 7. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3); and A.R.S. § 32-1154(A)(22). 8. At hearing, Complainant presented the testimony of John Lamont, a mechanical engineer with than 20 years of experience. Mr. Lamont testified that when he inspected the unit the return temperature going into the system was 72.9 degrees while the supply temperature coming out of the system was 58.1 degrees. Mr. Lamont stated that the difference of 14.8 degrees was a low split and did not meet the Arizona home inspection standards of a 20 degree split. Mr. Lamont also testified that a new air conditioning unit comes fully charged from the manufacturer for a 15 to 20 foot line set, but based on his observation of this particular installation, additional refrigerant would have been necessary because the unit required an approximate 80 foot line set. Mr. Lamont estimated the additional line set would require four pounds of refrigerant be added to the unit during the installation. Mr. Lamont also noted that because refrigerant is regulated by the Environmental Protection Agency, installers are required to document how much is used during installation; Mr. Lamont found no notation related to the installation that additional refrigerant was added to the unit at installation. Mr. Lamont offered technical testimony relating to his inspection of the unit and his observation of Respondent inspecting the unit. Mr. Lamont asserted that Respondent did not have the proper equipment on hand to properly measure the refrigerant in the system during its inspection that Mr. Lamont witnessed. Mr. Lamont stated that based on his findings, he believed the unit was undercharged and that the unit’s airflow was significantly lacking. Mr. Lamont noted that Respondent did not evaluate the unit’s airflow during its inspection. Mr. Lamont stated that when a system is properly charged, there should not be a need to recharge it unless a leak is present. Mr. Lamont concluded that the unit was not performing as it should. 9. Respondent presented the testimony of David Komm, a forensic engineer with more than 16 years of experience. Mr. Komm testified that on May 2, 2016, he inspected the unit and determined that the unit was low on refrigerant. Mr. Komm noted that a new unit comes precharged from the manufacturer, but if there is a long distance between components, the installer would need to increase the charge to account for the distance. Mr. Komm indicated that he would expect to see a notation on the invoice that additional refrigerant was added during the installation even if the customer was not charged for it and acknowledged that nothing in the documentation relating to the installation of the unit indicated any additional refrigerant was added. Mr. Komm posited that if the unit is low on refrigerant, either there is a leak in the system or the unit was not properly charged at installation. Mr. Komm concluded that there was no evidence either way that Respondent failed to install the unit properly. 10. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 23, 2016. Such prior License record reflects that Respondent’s License 205393 is current with one open complaint against Respondent’s license. Such prior License record reflects that Respondent’s License 206501 is current with no open complaints against Respondent’s license. 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. The evidence established that Respondent’s installation of the air conditioner was flawed. While it is unclear if there is a leak or some other defect with the unit, it is uncontested that the air conditioner is not operating properly. While Respondent’s counsel asserted in closing argument the unit is not working due to a manufacturer defect that should be addressed by the manufacturer and Respondent should not be responsible for the defect, Respondent offered no evidence to support that conclusion. Complainant established by a preponderance of the evidence that Respondent did not complete the project in a workmanship manner in violation of A.A.C. R4- 9-108, and thereby of A.R.S. § 32-1154(A)(3).[1] 4. The evidence established that Respondent did not check the system for leaks or verify that the system was charged to the proper levels by March 17, 2016, as set forth in the written directive. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 205393 for a period of 3 days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, September 23, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [2] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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