ALJDEC decisions subject to certification as final
2021A-03531-RFA-LS-ROC · Registrar of Contractors · 2022-10-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Bernard L. Caviglia
COMPLAINANT,
v.
Effertz Air LLC.
License No. ROC 290971,
RESPONDENT.
No. 2021A-03531-RFA-LS-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: October 4, 2022
APPEARANCES: Complainant Bernard L. Caviglia (Mr. Caviglia) appeared on behalf of himself. Marshall Effertz appeared on behalf of Respondent Effertz Air, LLC (Effertz) License No. ROC 29097. Assistant Attorney General Justin Larson appeared on behalf of the Arizona Registrar of Contractors (Registrar or ROC).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about June 17, 2021, Mr. Caviglia and Effertz entered into a contract for the amount of $3,980.12 wherein Effertz would install a new air conditioning condenser and compressor in Mr. Caviglia’s home.
2. On June 18, 2021, Mr. Caviglia performed work under the contract.
3. On or about July 27, 2021, Mr. Caviglia filed a complaint with the Registrar alleging poor workmanship and abandonment on the part of Effertz.
4. The complaint was assigned to Registrar Investigator David Fagerburg.
5. Investigator Fagerburg conducted an investigation into the complaint.
6. On September 8, 2021, the Registrar issued a Directive to Effertz. Through the Directive, the Registrar directed Effertz to correct the following complaint items by 5:00 p.m. on September 27, 2021:
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.
7. On September 30, 2021, the Registrar issued a Citation against Effertz’s license. Through the Citation, the Registrar alleged that Effertz violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).
8. Effertz filed an answer to the Citation and the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
9. A hearing was held on January 28, 2022. The Administrative Law Judge (ALJ) issued a decision finding that Effertz had violated A.R.S. § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).
10. On March 8, 2022, the Registrar accepted the ALJ’s decision.
11. On April 14, 2022, the Registrar received a claim from Mr. Caviglia for a payout from the Registrar’s Recovery Fund (Fund). See Exhibit 6. Mr. Caviglia reported the following information on the form:
the amount of the contract was $3,980.12.
Mr. Caviglia paid Effertz the full amount of the contract.
Mr. Caviglia was refunded the full amount of $3,980.12 by his credit card company.
12. Mr. Caviglia submitted three bids to repair the work with the claim.
13. Mr. Caviglia’s claim was reviewed by Gail Matthews, Legal Assistant II at the Registrar. The lowest bid was from ProSkill Services in the amount of $11, 206.
See Exhibit 14, Bates ROC-071-074. The ProSkill Services bid included the installation of a new condenser, 14 seer equipment. See id.
14. On June 16, 2022, in her review of the claim, Ms. Matthews contacted Registrar Investigator David Fagerburg. See Exhibit 16. Ms. Matthews sent an e-mail to Investigator Fagerburg that provided the following:
Good morning. I am reviewing the Recovery Fund claim from complaint 2021-03531. This is a HVAC complaint. My question to you is, is a new system replacement warranted or excessive? And if a new system is warranted and fair, what size system did the Complainant already have?
15. Investigator Fagerburg responded to Ms. Matthews the following day. Investigator Fagerburg opined that a new 14 seer system would be required. Investigator Fagerburg sent the following e-mail to Ms. Matthews on June 17, 2022:
Gail, Based on multiple estimates from other licensed contractors, it is unknown as to whether or not the new condenser on the ground, installed by the respondent, is compatible with the existing air handler in the attic and none of the other contractors will make repairs or warranty the system due to possible damage to the air handler coils. The original system was an R-22 refrigerant based system and the new condenser is an R-410 refrigerant based system. It is unknown whether or not the respondent properly recovered the refrigerant prior to starting the units. It is most likely that the entire system will need to be replaced as 1 or both units may have been damaged by the 2 different refrigerants. The condenser installed on the ground is a Goodman 5 ton, 14 SEER unit. The air handler in the attic is a Carrier, SEER not identified, manufactured in June 2005. Based on the age of the air handler it is most likely the system is 14 SEER. Please let me know if I can be of further assistance.
16. Ms. Matthews calculated Mr. Caviglia’s actual damages by using the lowest bid from ProSkills. The amount of $11,206, less $3,980.12, is $7,225.88.
17. On July 14, 2022, the Registrar notified Mr. Caviglia and Effertz Air of its determination that Mr. Caviglia would be awarded $7,225.88 from the fund.
See Exhibit 17.
18. Effertz Air requested a hearing regarding the determination.
19. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
20. A hearing was held on October 4, 2022.
21. At hearing, Mr. Effertz testified on behalf of himself. The Registrar presented the testimony of Gail Matthews, Legal Assistant II at the Registrar, and submitted exhibits 1 through 17.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. A.R.S. § 32-1132.01 provides:
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B. An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:
1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.
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3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
4. After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainant’s actual damages. The award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive an award from the Residential Contractors’ Recovery Fund in the amount of $7,225.88.
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, October 24, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
Bernard L. Caviglia
2323 W. Cassandra Dr.
Phoenix, AZ 85086
[email redacted]
Effertz Air, LLC
6124 W. Saint Moritz Ln
Glendale, AZ 85306
[email redacted]
By Miranda Alvarez
Legal Secretary
-54864001
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