ALJDEC

98F-1526-ROC · Registrar of Contractors · 1998-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 1998

APPEARANCES: Complainant Marian Paronyan appeared representing herself. Respondent Advance Air Cleaning, Inc. appeared through its owner, Ron Schuman.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. In August 1996, Complainant secured the services of Respondent to make some air conditioning repairs to the Carrier furnace/air conditioning unit at her home. Respondent noted the condenser fan motor was making noises, and that burnout would occur. This furnace/air conditioning unit was approximately 20-plus years old. At that time, Complainant additionally purchased a service contract for $295.00. 2. On December 26, 1996, Complainant called for service on the unit as her tenants reported that they had no heat from the unit. Respondent worked on the unit repairing or replacing the blower motor and the thermostat. The December 27, 1996 invoice was for $397.00. Complainant was unhappy with the charges, and the parties came to an agreement to cancel the service agreement, applying the cost of the service agreement to the invoice for the service just completed.

3. In May 1997, Respondent was apparently called to the house by the tenants. Respondent testified they found that the time delay and limit control were burnt out, and that the heat sequencer was bad. To make the air conditioning repairs, Respondent bypassed the time delay, wiring the motor to the contactor. Respondent wrote on the invoice that these were temporary repairs, and that the unit would not work for heat. Respondent testified that the repair cost was paid by the tenants. 4. On December 11, 1997, Complainant called for service on the unit as her new tenants reported to her that they had no heat from the unit. Respondent testified that they did not have all the parts necessary, and had to reschedule the repairs for a few days later. To make the unit work, Respondent replaced the sequencer and the blower. 5. Respondent testified that they went back again (either one week later or on December 21, 1997), and found that the wires were not making connections. Respondent testified that they repaired a few wires, installed a new time delay and a new limit switch. Respondent testified that they did not charge for the visit, having just been there, and Respondent had no service paperwork for this visit. 6. Respondent testified that the unit again broke down a couple days later, and they had tried to convince Complainant to buy a new unit rather than continue to make repairs. Respondent testified that they offered to apply the last repair monies toward a new unit. However, Complainant testified that Respondent told her they did not know what else to do on the unit, and offered the refund, telling her that they wanted someone else to work on this unit. 7. On December 23, 1997, Complainant then called Mr. Ron Bott of “Alaskan Air” to come to work on the unit. It is noted that Mr. Bott was subpoenaed for the hearing, but did not arrive. Complainant testified that the service person called her husband up to the roof and stated to him that the wiring was done incorrectly. Complainant testified that the service person told her husband that the wires were fried or burnt. Complainant testified that the service person told her husband that a 240 volt wire was connected to a 24 volt control unit. There was no technical or expert evidence presented regarding any burnt wires or alleged incorrect connections. 8. The “Alaskan Air” [Alaskan Mechanical Services] invoice for the repair work states that the gas valve was defective, and was replaced with a new 24 volt gas valve with thermocoupler. The charge on the invoice was $348.52. Their invoice also states that the unit needs to be replaced, however, there is no indication on the invoice of any fried or burnt wires or of any wire replacement or rewiring. 9. After Alaskan Mechanical Services completed its repairs, the unit was started. Complainant testified that two minutes later, they heard a minor explosion, which was in the unit and caused the demise of the unit. 10. On December 29, 1997, Complainant filed her complaint with the Registrar. 11. After a January 16, 1998 inspection, the Registrar’s inspector advised the parties “There is no evidence that any action by the contractor contributed to the demise of this 30 Year old furnace.” Complainant requested that the matter be set for hearing. 12. In February 1998, the Registrar issued it Citation and Complaint against Respondent alleging possible violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7 and 32-1154.A.3 specifically Arizona Administrative Code (A.A.C.) R4-9-108. 13. Complainant argues that Respondent’s work on the unit caused the unit to become junk when the 240 volt wire was connected to a 24 volt control unit, which led to the demise of the unit. Complainant argues that Respondent is in this business, and should have known not to do the wiring that way, and should be liable for the burning of the unit and all the expenses incurred. Complainant testified that their costs were: having to pay Alaskan Mechanical Services; the purchase of a new unit, at a cost of $2,390.00; and having to give a rent break for the tenants. 14. Respondent argues that they had attempted to convince Complainant to replace the unit several times, that they had made the repairs they could to this very old unit, that the wires were not burnt or fried, and that they had done no work on the parts in the unit which caused the flash/explosion. Respondent testified that it had appeared to them, at the time of the job site inspection, that the gas valve had been installed backwards which caused the unit to flash/burn. Respondent argues they are in no way responsible for the work which caused the demise of the unit, and the unit should have been replaced long ago. 15. The Registrar’s Inspector testified that at the inspection, he looked at the old unit which was in the yard, having been taken off the roof. The Inspector testified that, although the wires had blackness on the insulation, they were not burnt or disintegrated into charcoal. The Inspector testified that there was no proof that a 220 wire was ever connected to a 24 volt circuit. The Inspector testified that he looked at the Registrar’s records and found that the license for “Alaskan Air” was canceled, and he did not call them or pursue the incident with that company. 16. It is found and determined that, under the facts and circumstances revealed by all the evidence and testimony presented at the hearing, Respondent is not responsible for the work which apparently caused the flash/explosion in this unit. The evidence failed to demonstrate that any of the repair work undertaken by Respondent was improper or substandard. APPLICABLE LAW A.R.S. §32-1154.A. provides, in the following relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. [Specifically, A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW Complainant did not sustain her burden of proving by a preponderance of relevant, substantial and probative evidence that Respondent has violated any of the provisions of the State’s contracting laws, as charged in the Registrar’s Citation. RECOMMENDED ORDER In view of the foregoing, it is recommended that the entire Citation and Complaint in this matter, Registrar’s Case No. 98-1526, be dismissed. RECOMMENDED this day, June 9, 1998.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of June, 1998 to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007 By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 PH (602) 542-9826 / FAX 542-9827