ALJDEC

98F-1957-ROC · Registrar of Contractors · 1998-08-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on August 13, 1998 pursuant to advance notice duly sent to both parties. The Complainant appeared in her own behalf, and the Respondent failed to appear. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Following a telephone solicitation by Respondent in January, 1998, Complainant authorized the performance of a seasonal servicing of her heating and air-conditioning equipment.

2. One of Respondent’s service technicians came to Complainant’s residence and proceeded to perform the servicing of the unit which was mounted on the roof of the dwelling. Prior to this visit, Complainant’s uncontroverted evidence tended to show that the equipment had been operating continuously without problems.

3. At the conclusion of the authorized work, and after attempting unsuccessfully to induce Complainant to purchase a replacement for her existing unit or at least to enter into an annual service contract arrangement, Respondent’s service representative presented an invoice for the seasonal servicing in the amount of $39.95 as quoted in advance during the phone solicitation. This invoice amount was paid in full by Complainant.

4. Both Complainant and her husband had been ill at the time of the above-described service visit, and they attempted to turn on the heat in the home shortly after the departure of Respondent’s workman. Upon discovering that the equipment was unable to start its heating functions, Complainant’s husband went onto the roof, despite his sick condition, and observed that the unit’s switch had been left in the “off” position.

5. The unit failed to produce a flow of warm air after the switch was turned to the “on” position, prompting Complainant to summon her adult son who came to the home and climbed on the roof. It appeared that the pilot light had not been left on, as it was prior to the service call. Complainant’s son thereupon lit the pilot light, and the equipment was made functional and has continued to operate properly, in the heating and cooling mode, up until the present time.

6. It is found and determined that Complainant did not receive the benefit of her bargain with respect to the seasonal service call work. Reasonable care could and should have been exercised by Respondent, especially when offering homeowners a promotional check-up service designed to give the business entity an opportunity to present and potentially obtain contracts for more extensive and more lucrative mechanical work. Equipment that was shown to have been previously operating on a continuous basis is not expected to be left inoperable after the service visit. Such result not only reflects adversely on Respondent’s workmanship but also constitutes the committing of a wrongful act on the part of Respondent to the detriment of Complainant within the meaning of another charged code provision.

7. The above-described breach by Respondent of its contractual undertaking at Complainant’s residence generates an entitlement for Complainant to receive a full refund from Respondent of all monetary consideration previously paid for the valueless seasonal service visit.

By its failure to appear at or participate in the hearing of this matter, Respondent presented no evidence in defense or in mitigation of the within allegations and charges.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established that Respondent has violated the provisions of A.R.S. §32-1154A (7) and (3).

2. It is not a proper function of either the Office of Administrative Hearings or the Registrar of Contractors to adjudicate and award money damages which must be recovered, if at all, through civil court action. However, the Registrar is empowered by statute to impose reasonable conditions which may serve to reduce or eliminate any otherwise appropriate disciplinary penalties for proven violations of the State’s contracting laws. Whenever the performance of corrective or remedial measures on a jobsite is no longer warranted, desired or possible, the inclusion of a condition in the nature of restitution, total or partial, is fully appropriate and equitably justified. In this way, a Complainant in an administrative action who has sustained the burden of proving contracting law violations does not have to await the outcome of protracted civil litigation in order to recover at least a portion of a demonstrated loss and, of equal or perhaps greater significance, a licensed Contractor/Respondent is given the means to control, to some extent, the severity of any disciplinary penalty.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that the Class C-39R license of Respondent be temporarily and actively suspended until the Registrar receives proof that Respondent has paid or tendered the sum of $39.95 to Complainant.

It is further recommended, in addition to the foregoing indefinite license suspension, if any, that Respondent’s Class C-39R license be placed on probation for a period of 60 days commencing on the effective date of the Registrar’s Order or the date

on which notice of Respondent’s compliance with the payment terms of this Order is filed with the Registrar, whichever is later.

Dated: August 20, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

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