ALJDEC decisions subject to certification as final
2021A-03531-CHC-ROC · Registrar of Contractors · 2022-02-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bernard L. Caviglia,
COMPLAINANT,
v.
Effertz Air, LLC,
License No. ROC 290971,
RESPONDENT.
No. 2021A-03531-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 28, 2022
APPEARANCES: Complainant Bernard L. Caviglia appeared on behalf of himself. Marshall Effertz appeared on behalf of Respondent Effertz Air, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Effertz Air, LLC (Effertz Air) holds License No. ROC 290971 issued by the Arizona Registrar of Contractors (ROC).
2. Marshall Effertz is the qualifying party for Effertz Air.
3. On June 17, 2021, Effertz Air agreed to install an air conditioning condenser and compressor at Mr. Caviglia’s home for the amount of $3,980.12. Effertz Air did not provide Mr. Caviglia with a written contract regarding the construction work.
4. On or about June 18, 2021, Effertz Air started work.
5. On or about June 18, 2021, Effertz Air stopped work.
6. On or about July 27, 2021, Mr. Caviglia filed a complaint with the ROC alleging poor work and abandonment on the part of Effertz Air.
7. On August 30, 2021, ROC Investigator David Fagerburg conducted a job-site inspection. Mr. Caviglia and Mr. Effertz were present. Investigator Fagerburg substantiated complaint items 2, 3, 4, 5, 6, 7, 10, 11, and 12 from Mr. Caviglia’s complaint.
8. On September 8, 2021, Investigator Fagerburg issued a Directive to Effertz Air. The Directive provided, in relevant part, as follows:
..................................
You are directed to remedy the following violations by the appropriate means:
Compliant Item 2: Effertz Air would not return to diagnosis and fix what might be wrong after his installation and the condenser continued to fail.
Investigator’s Observation: The respondent is to determine cause and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 3: He recommended that we only need to replace the compressor and condenser and it would have 10 year warrantee and we would a have a 100% compatible system
Investigator’s Observation: The respondent is to provide documentation that ensures the scope of the installation and the equipment installed as it relates to the existing equipment in the attic including warranty information and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 5: He did not provide information regarding the scope of his installation or the equipment he installed as it related to the existing equipment in the attic prior to installation. Prior to installation, he did not make or state any disclaimers that would prevent him from providing a 100% compatible, working system with a 10 year warrantee.
Investigator’s Observation: The respondent is to provide documentation that ensures the scope of the installation and the equipment installed as it relates to the existing equipment in the attic and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards. ARS §32-1158 (A) Minimum elements of a contract
Compliant Item 6: Mr Effertz stated there was no additional work or equipment needed, in particular, the coils, for the units to be compatible, and restore the unit back to normal operating condition.
Investigator’s Observation: The respondent is to provide documentation that ensures the scope of the installation and the equipment installed as it relates to the existing equipment in the attic and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 7: Before and after installation, the new condenser had oil in the bottom of the pan, where the compressor is located, and also oil on the coils. I questioned him and he stated that's how it came. Other contractors have had other responses.
Investigator’s Observation: The respondent is to determine cause and correct the condenser installation by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 10: Effertz Air LLC will not provide me with proposal to fix the system he installed, or tell me what's wrong, which I have requested on multiple occasions. Its known that the problem is the compressor he installed is not performing as it should. The unit has continued to shut down under load on hot days. He never got into the attic to inspect the equipment on the initial service call he made, before or after he installed the new unit or when he made his call back.
Investigator’s Observation: The respondent is to provide documentation that ensures the scope of the installation and the equipment installed as it relates to the existing equipment in the attic, determine cause and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 11: He refused to provide any customer information related to the use of the unit or warrantee information or invoice. He left or gave me nothing.
Investigator’s Observation: The respondent is to provide documentation that ensures the scope of his installation or the equipment he installed as it relates to the existing equipment in the attic including warranty, operation and maintenance information and correct the HVAC system by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Compliant Item 12: The air conditioning unit continues to shut down and not hold set temperature.
Investigator’s Observation: The respondent is to determine cause and correct the air conditioning unit that does not hold set temperature by appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
9. Mr. Effertz’s business truck was in the repair shop for approximately 4 weeks. After Mr. Effertz retrieved his business truck from the repair shop, the deadline for compliance under the Directive had passed.
10. Mr. Effertz did not begin to contact Mr. Caviglia by e-mail to attempt to repair Directive items until the deadline for compliance had passed.
11. Effertz Air did not correct the items listed in the Directive.
12. On September 30, 2021, the ROC issued a Citation against Effertz Air’s license. Through the Citation, the ROC alleged that Effertz Air may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).
13. Effertz Air filed a timely answer to the complaint. Mr. Effertz asserted that Effertz Air only sold a new condenser to Mr. Caviglia.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. A hearing was held on January 28, 2022. At hearing, Mr. Caviglia testified on behalf of himself. Mr. Effertz testified on behalf of himself. Investigator Fagerburg testified regarding his investigation of the complaint and the issuance of the Directive.
16. Investigator Fagerburg explained that Mr. Caviglia’s condenser was not blowing cool air at the time of the inspection. Investigator Fagerburg explained that
Mr. Effertz informed him that Mr. Effertz tried to e-mail Mr. Caviglia to arrange for a time to correct the Directive items. Investigator Fagerburg requested copies of the e-mails from Mr. Effertz. However, Investigator Fagerburg never received the copies.
17. Mr. Caviglia explained that Effertz Air performed poor work when it installed the air conditioning compressor and condenser at his home. Mr. Caviglia testified to the effect that the compressor and condenser did not work properly.
Mr. Caviglia stated that Effertz Air did not install the piston that came with the air conditioning compressor and condenser. Mr. Caviglia alleged that Effertz Air did not inspect the attic.
18. Mr. Effertz stated that at the time of the job-site inspection, the condenser was working and the temperature was 70 degrees. Mr. Effertz admitted that he did not send e-mails to Mr. Caviglia to correct the Directive items until after the deadline to correct the Directive items had passed. Mr. Effertz also stated that at the job-site inspection, Mr. Caviglia demanded that Effertz Air install a new air conditioning unit.
Mr. Effertz refused to install a new air conditioning unit. However, Mr. Effertz stated that he placed phone calls to Mr. Caviglia to correct the Directive items but did not leave voice mail messages. Mr. Effertz also stated that Mr. Caviglia had already been reimbursed by the bank for the money that he paid to Effertz Air.
19. I do not find the testimony of Mr. Effertz regarding the condition of the condenser on the date of the job-site inspection and his phone calls to Mr. Caviglia to be credible.
20. Administrative notice is taken of Respondent’s prior License record on February 17, 2022. Such prior License record reflects that Respondent’s License
No. 290971 was first issued on April 23, 2014, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license. Respondent’s lack of a disciplinary history is considered a mitigating factor in the imposition of penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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.
3. The Administrative Law Judge may consider ROC’s administrative record. See A.A.C. R4-9-118.
4. 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).
5. The preponderance of the evidence shows that Respondent failed to
install the air conditioning compressor and condenser in a professional and workmanship like manner, which is a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
6. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a violation of A.R.S. § 32-1154(A)(22).
7. The undisputed evidence established that Respondent did not provide Complainant with a contract regarding the installation of the air conditioning condenser and compressor, which is a violation of A.R.S. §32-1154(A)(12), namely A.R.S. § 32-1158(A).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 290971 held by Effertz Air, LLC for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), 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 forty days from the date of that certification.
Done this day, February 17, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors