ALJDEC

98F-2026-ROC · Registrar of Contractors · 1998-12-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 1998 APPEARANCES: Bruce and Debbie Sobel, Complainants, in their own behalf Aaron Kizer, Attorney at Law, on behalf of Respondent, Chas Roberts Air Conditioning, Inc. Chris Hamill, on behalf of Respondent, Del Webb’s Coventry Homes Construction Company ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT The Complainants purchased a home built in north Scottsdale by the Respondent Del Webb’s Coventry Homes Construction Company (Coventry). The Complainants had viewed the Coventry model of the home prior to their selection and purchase. The heating-cooling system for the model of home purchased by the Complainants was in large part designed by the Respondent Chas Roberts Air Conditioning, Inc. (Roberts), which installed the system in the Complainants’ new home. The Complainants moved into the home in November, 1996. The residence is approximately 3600 square feet. It has an open area with 18 to 20 foot ceilings in the kitchen, living room, dining room and family room. The supply vents for the air conditioning and heating for these areas are in the ceiling. The second floor level of the home is primarily above the garage and the two downstairs bedrooms. It has an open area at the top of the stairs (loft), an activity room, three bedrooms and a bath. Two air return vents are in the loft area. The home has two air conditioner and furnace systems. These units are located in the attic with a five ton air conditioner for downstairs and a three and a half ton unit for upstairs. The Complainants’ complaint may be characterized in two ways which essentially address the same problem. At various times and under certain circumstances during the winter months, the temperature in the downstairs open area is significantly cooler than upstairs. This is when the heat is on (both the upstairs and downstairs thermostats are set at approximately degrees). The other is, that during the winter months, the downstairs kitchen and family room never get warmer than the 68.5 to 70 degree range, even when the downstairs hall thermostat is set at 76 degrees and the downstairs fan is constantly running. These open downstairs areas can never be heated much above 70 degrees during the colder months of winter with some areas not reaching 70 degrees. Based on the Complainants’ temperature measurements (Exhibit 4), the hallway temperatures were between 70 and 74 degrees F. from February 11 through 13, 1998 (weekdays) when the temperature was taken (generally every hour from 5:00 or 6:00 p.m. to 1:00 a.m., and in the morning at 7:00 and 8:00 a.m.). According to the Complainants’ testimony, the furnace for the downstairs was on a majority of the time when the Complainants were at home. During the evening hours to after midnight and into the morning, the open upstairs area (thermostat in the loft) would generally increase in temperature (from a low of 72 degrees at 5:00 or 6:00 p.m. when the furnace was turned on to 80 degrees at midnight). During the time the Complainants were not at home and the thermostats were turned down (anywhere from 65 to 72 degrees), the temperatures throughout the house were in the 69 degree to 72 degree range. This was in the late afternoon 5:00 or 6:00 p.m., after the home had been vacant for 8 hours and generally reflects the end of the day’s natural warming cycle. On two weekend days (February 14 and 15, 1998), the upstairs loft temperatures stayed between 78 and 81 degrees. The Complainants were home during the morning and afternoon hours on the weekend, and thermostats were apparently kept at 76 degrees during the entire weekend. The Respondent, Roberts has made approximately ten trips to the Complainants’ home since the initial start up of the system in October, 1996. Three visits were in December 1996 and January 1997, three in June and July of 1997 and four in January and February 1998. Adjustments to the system include, but were not limited, to increasing the size of the flex duct, changing filters, and redirecting air flow. The Complainants filed their complaints with the Registrar of Contractors (Registrar). The complaint against Roberts was filed on February 20, 1998. The complaint against Coventry was filed January 2, 1998. Dick North (North) of the Registrar’s Office did a jobsite inspection. On February 9, 1998, North issued a conclusion that although the system did not evenly distribute heated air through the house, it met a standard of 70 degrees as specified in the “Ashrae handbook”. No corrective action was required. North performed another inspection and by letter dated March 6, 1998, concluded that the areas he measured were within the minimum of 70 degrees when the outside temperature was 48 degrees. Again North concluded no action was required. The system which is installed at the Complainants’ home is designed with an emphasis on cooling efficiency. The evidence suggests that heating efficiency would be improved if the air supply vents are moved nearer to the first floor of the home but this was not shown to be practicable. The Jeffries Engineering Report indicates that lower air returns than those in the loft ceiling would improve heating but diminish cooling. According to Jim Colgan (Colgan), a mechanical engineer and employee of Roberts, the Complainants’ home cannot have the air supply vents placed in overhead beams as pictured in Complainants’ Exhibit 3 (a similar but not identical home), because there is inadequate space for the duct work to be placed in such a way in the Complainants’ home. This testimony was not refuted by the Complainants. CONCLUSIONS OF LAW The Citation and Complaint against both Respondents allege violation of A.R.S. §32-1154(A)(3) violation of any rule adopted by the Registrar, specifically A.A.C.R4-9-108, workmanship standards and (A)(7), wrongful or fraudulent act resulting in substantial injury. The initial defense presented by Respondent Coventry is that to the extent that the complaint addresses engineering design or architectural issues, it is outside the realm of workmanship and arguably also outside the jurisdiction of the Registrar. The defense is not accepted. In Rosell v. Silver Crest Enterprises, 7 Ariz. App. 137 (1968), the Court stated: “When a contractor agrees to build a structure to be used for a particular purpose, there is an implied agreement on the part of the Contractor that the structure when completed, will serve the purpose for which it was intended….When a contractor furnishes plans for construction he thereby guarantees their sufficiency….Where the contractor prepares the plans and specifications he cannot escape responsibility for defects in the work by contending that the defects were in the specifications and not in the work since he is responsible for both. ”

In the instant case the evidence clearly indicates the design of the home was provided by Respondent Coventry. The design of the heating and cooling system was in major part by the Respondent Roberts which installed the system. In light of those facts, the language cited from the above decision is controlling. The evidence shows that under the circumstances of the test conducted by the Complainant, some of the open downstairs areas do not reach 70 degrees even when both thermostats are set at 76 degrees. Rather the hot air rose and the upstairs simply became hotter. North’s conclusion of March 6, 1998, is noted but is not controlling. It relates to one testing period on a day when the outside temperature was 48 degrees. It can be judicially noticed that winter temperatures in the Valley including the northern Scottsdale area are often significantly lower than 48 degrees. The evidence presented on how the Complainants should equalize the temperature in the home is not really the issue. Whether the air conditioning is turned on upstairs or the windows are opened, does not raise the temperature in the sub 70 degree areas downstairs. Although the thermostats were turned down during weekdays and the testimony indicated that this made the house lose heat, thereby making it harder to warm the house, it does not explain the condition on weekends when the thermostats were constant and the pertinent areas were still under 70 degrees. The downstairs temperature was essentially the same whether the heat was left on or off which makes the loss of heat testimony irrelevant in this case. The record shows 70 degrees is the requisite standard. This standard is not consistently met in certain living areas at the Complainants’ home during cold periods (by Phoenix standards) in the winter months. Arguably the increase in cooling efficiency during the summer should be considered. However, there is nothing in the law or the Registrar’s standards which provides that exceeding a standard in one area excuses the failure to achieve the standard in another area. In addition, there is no evidence that an exception to the required heating standard has been made for homes like the Complainants’ with their open and high interior living areas. Notwithstanding the Complainants’ hyperbole and although the Complainants are not necessarily entitled to perfection, they are entitled to 70 degrees in the downstairs open living areas of the home. This should be accomplished without making the second level of the home unbearably hot. The Respondent’s acts are not considered in violation of A.R.S. §32- 1154(A)(7). This is not a wrongful act within the context of the statute. There is no showing that the equipment used, or the actual workmanship of installing the equipment was below any established standard. However, design of the home and the design of the heating-cooling system ductwork is such that certain living areas in the home do not meet the minimum standards for heating and under Rosell v. Silver Crest Enterprises, the Respondents are liable for this based on a violation of A.R.S §32- 1154(A)(3)/A.A.C. R4-9-108. It is not for the Administrative Law Judge to specify how the Respondents are to make the necessary corrections to bring the system up to standard. The Complainants’ remedy of moving the air vents down was not shown to be feasible according to the testimony of Colgan. This Administrative Law Judge will not specify a corrective work which is unreasonable or impracticable. However, considering the experience and background of both Respondents, some remedial action to meet the standard is necessary. The responsibility attaches to the Respondents individually as well as jointly. RECOMMENDED ORDER In view of the foregoing it is recommended that commencing on the effective date of the Order entered in this matter, that the Class C-39R license of the Respondent Chas Roberts Air Conditioning, Inc. and the Class B license of Del Webb’s Coventry Homes Construction Company be suspended until the Registrar of Contractors receives written proof that the livable areas in the home meet or will meet minimum industry heating standards including an acceptable variation in temperature between the lower and upper floors during reasonably anticipated cold weather at the location of the Complainants’ home in Scottsdale Arizona; It is further recommended that if the Respondent or Respondents accomplish the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it was based shall be closed. Done this day, December 29, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of December, 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 (602) 542-9826