ALJDEC

98F-1981-ROC · Registrar of Contractors · 1998-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 6, 1998. APPEARANCES: Complainant appeared through its president, Harry Fong. Respondent appeared through its president and qualifying party, Lawrence Mortenson. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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. On or about May 9, 1996, the parties entered into a written agreement for the design and installation of a walk-in freezer at Complainant’s commercial establishment located at 2531 East University, Tempe, Arizona.

2. Respondent was responsible for fulfilling the following specifications: installation of one 8’ X 9’ walk-in freezer with three 26” X 72” merchandise doors; installation of one Copeland single phase, semi hermetic condensing unit using R-404A freon; installation of one Larken four fan evaporator coil, with electric defrost, as well as all piping and electrical control wiring necessary to make system operational; and the design and installation of the refrigeration system to maintain a temperature range of -10ºF to -20ºF. Respondent agreed to provide Complainant with a four year extended warranty on the compressor at no extra charge. 3. The contract price for the freezer unit was the sum total of $11,320.95, payable over three payments. Complainant has paid the contract price in full. 4. The walk-in box and refrigeration equipment required voltage brought to it from the main electrical panel. While Respondent did install the electrical control wiring necessary to make the system operational, Respondent did not contract to provide the electrical supply to the unit. Respondent recommended that Complainant hire an electrician to perform such work. Complainant did hire an electrical contractor to install the electrical supply to the refrigeration unit. 5. There is credible evidence of record to support a finding that the walk- in refrigeration unit was designed to store ice cream at a temperature of -10º F. 6. On September 3, 1996, Complainant contacted Respondent complaining that the system was not defrosting. Respondent dispatched a technician to Complainant’s store for a service call. The technician found that the defrost heaters had failed. Respondent replaced the defrost heaters under warranty at no cost to Complainant. 7. On September 13, 1996, Respondent dispatched a service technician to Complainant’s business for a requested service call. The technician found that the evaporator had iced up and that the drain line was plugged. Respondent installed a new drain line heater at no cost to Complainant. Respondent’s technician also observed that items other than ice cream were being stored in the unit. Respondent’s technician advised Complainant that if the freezer door was left open, it would cause excessive humidity resulting in the evaporator freezing prematurely and ice forming in the box. 8. On December 30, 1996, Respondent repaired a pan leak under warranty. Complainant was again advised to keep the walk-in freezer door closed. 9. On January 14, 1997, Respondent made another service call to Complainant’s business and found excessive ice forming in the unit before the system went into defrost. Respondent installed additional defrost settings at no cost to Complainant. At Complainant’s request, Respondent also installed an automatic door closer on the freezer door at an additional cost of $190.01. 10. On June 23, 1997, Respondent responded to a service call by Complainant complaining that the walk-in freezer was not cooling. Respondent found that an electrical spike had damaged the defrost control timer. Respondent changed out the timer at Complainant’s expense since the timer was out of warranty. The rheostat for the door heaters was also damaged and the replacement part was ordered. 11. On July 3, 1997, Respondent returned to Complainant’s business and replaced the damaged rheostat with the replacement part at no cost to Complainant. During that service call Respondent advised Complainant that there was an electrical problem with the compressor, probably caused by the electrical spike. The parties set up a date to replace the compressor. 12. On July 28, 1997, Respondent replaced the defective compressor under warranty. Although the warranty only covered the cost of the compressor and filter drier, Respondent did not charge Complainant for labor, refrigerate and other materials which would normally have been Complainant’s responsibility. Respondent did charge Complainant the sum of $250.00 for the crane service to lift the new compressor onto the roof and remove the old one. It is undisputed that Complainant has paid Respondent for that charge. 13. On February 12, 1998, Complainant’s freezer did not operate properly. Rather than call Respondent for a service call, Complainant contacted Hobaica’s Refrigeration Co., Inc. (“Hobaica”) to inspect and repair the unit. Hobaica made the following written recommendation to Complainant: re-wire the system to local codes; install rain cover on unit; seal roof penetration; install a P trap on the suction riser; and check and adjust super heat. Hobaica added freon to the unit and installed a dual pressure control on the unit. Complainant was charged the sum of $979.81 by Hobaica for the diagnostic service and repairs performed on that service call. 14. On February 17, 1998, Complainant filed a complaint against Respondent with the Registrar of Contractors. 15. On June 9, 1998, Complainant obtained an assessment of the walk-in freezer from Schmidt’s Service Company (“Schmidt”). Schmidt made the following recommendations to Complainant: wire roof top to local code; install cover over unit; seal roof around lines; check super heat and adjust if necessary; and remove wall and install cover for other unit on the roof to prevent it from falling down and hitting the condenser coil. 16. The weight of credible and reliable evidence of record supports a finding that Complainant has failed to establish that Respondent has violated this State’s contracting laws as alleged in the Complaint and charged in the Citation. While there is hearsay evidence from two of Respondent’s competitors that electrical wiring needs to be repaired to meet local code, that evidence does not establish if the alleged non-code electrical wiring is located in the electrical control wiring installed by Respondent, or is located in the power supply wiring installed by an electrician whose work is not the responsibility of Respondent. 17. It is determined that the deficiencies in the freezer’s operation alleged by Complainant are the result of Complainant’s use of the walk-in freezer for the storage of frozen food products requiring temperature settings higher than the designed temperature range for the freezer. The original specifications for the freezer provided for a temperature range inside the freezer between -10º F to -20º F for the storage of ice cream products. After the walk-in freezer was installed, Complainant began also storing items such as bologna, pizza crust, pepperoni and sliced roast beef in the freezer. Although such items are frozen, they are not frozen to a temperature of -10º F. The introduction of frozen food products with temperatures greater than -10º F but less than 32º F results in latent heat introduced into the freezer if the freezer thermostat is set at -10º F. The latent heat from the warmer frozen products results in the presence of moisture inside the freezer, which must be remove. Other factors contributing to the introduction of moisture inside the freezer include Complainant’s pizza-making operation, which began after the installation of the freezer, a measured relative humidity level of 45% inside Complainant’s store and the lack of a dehumidifier. 18. There is credible evidence of record that the freezer temperature should be maintained at 20º F to operate effectively if Complainant intends to store ice cream products with warmer frozen products. However, if Complainant desires to store the ice cream products at -10º F to keep those products hard, then Complainant should store those products in a separate freezer from the warmer frozen products. 19. Any claims for damages by Complainant against Respondent should be resolved in a civil court of competent jurisdiction.

CONCLUSION OF LAW

1. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. § 32-1154 (A) (7) and (3); namely Rule R4-9-108.

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RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed.

Done this day, August 19, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

ATTN: Joyce Armijo

By _______________________________

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