ALJDEC

99F-1990-ROC · Registrar of Contractors · 1999-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 1999 APPEARANCES: Shirley Sternke on her own behalf, William Bardo, president, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On January 23, 1996, Complainant contacted Respondent and arranged for a service call concerning her air conditioning unit at her residence (the “Home”). Previously, Complainant had Chas Roberts look at the unit and was informed that the compressor in the unit needed to be replaced. 2. At all times material to this matter, Complainant had and currently has a heat pump system at the Home that provides heating and cooling. The system consists of an air handler in the Home and a condensing unit outside of the Home. 3. On January 23, 1996, William Bardo, Respondent’s president, arrived at the Home and inspected the condensing unit. Mr. Bardo advised Complainant that she needed a new compressor and she could either replace the compressor or replace the condensing unit. Complainant decided to replace the condensing unit. 4. Complainant testified that there was no discussion with Respondent as to the kind of unit that would be installed. Mr. Bardo testified that he discussed with Complainant various options such as the seer number of air conditioning units and replacing the copper tubing inside the Home as well as replacing exterior tubing leading into the interior of the Home. According to Mr. Bardo, due to financial considerations, Complainant decided to only replace the outside condensing unit. During the hearing, Complainant testified that she did not recall that discussion. 5. On July 23, 1996, William Alvarez, an officer and employee of Respondent, installed a 5-ton 10 Seer Coleman condensing unit at the Home. Both Mr. Alvarez and Mr. Bardo testified that the installed Coleman unit is comparable to the 5-ton 65,000 British Thermal Unit (“BTU”) condensing unit that Respondent replaced at the Home. They also testified that the Coleman unit is compatible with the air handler inside the Home. 6. On May 8, 1996, Complainant experienced a problem with the Coleman unit and contacted Respondent because the unit was not blowing cold air. Respondent responded to the call and installed a new delay switch to the unit. 7. On May 12, 1996, Complainant still had problems with cooling the Home and again contacted the Respondent. Respondent inspected the equipment and determined that the cause of Complainant’s problems was a TXV spring that controlled the air flow to the air handler. Although the TXV spring was not part of Respondent’s installation of the outside condensing unit, Respondent provided a new TXV spring and labor for installation at no charge to Complainant. Mr. Alvarez testified that, collectively for the part and labor, the charge would have been approximately $300.00. 8. On May 13, 1996, Complainant contacted Respondent concerning problems with cooling the Home. Upon inspecting the situation, Respondent determined that Complainant’s thermostat required replacement. Although not part of the initial work performed by Respondent, Respondent replaced Complainant’s thermostat with a new thermostat at no charge to Complainant. Mr. Alvarez testified that, collectively for the thermostat and labor, the charge would have been approximately $100.00. 9. On June 6, 1996, Complainant experienced problems with the Coleman condensing unit and contacted Respondent. Respondent arrived at the Home on that date and determined that the previous problem with the TXV spring had caused damage to the Coleman unit. Upon contacting its distributor for a replacement Coleman unit, Respondent was informed that the distributor did not have any of those units available and that they were on backorder. The distributor offered to provide Respondent with a 5-ton 65,000 BTU, 10 Seer Janitrol unit that would be comparable to the Coleman unit. Respondent obtained the unit from the distributor and replaced the Coleman unit at the Home with the Janitrol unit. 10. Complainant purchased an extended warranty for the Janitrol unit through Goodman, the manufacturer of Janitrol. The extended warranty provides a $300.00 credit towards labor on the compressor of the condensing unit for the 2nd through 10th year and a compressor exchange program for the 6th through 10th year. 11. It is undisputed that Respondent provides its own one year warranty on its labor. 12. On November 11, 1996, Complainant had no heat in the Home and contacted the Respondent concerning that problem. The record is unclear as to the nature of the services performed by Respondent. However, Complainant testified that as a result of Respondent’s visit, the heating problem was corrected at that time. 13. In November, 1998, Complainant again experienced a heating problem at the Home and contacted the Respondent. Mr. Alvarez performed a service call to the Home and informed Complainant that the switching valve on the Janitrol condensing unit required replacement. Respondent did not have that part on the jobsite and stated that he would be back in two to three hours with the part. He informed Complainant that because the part was covered under warranty, there would be no charge for the part but there would be a charge for labor as that was not covered under the manufacturer’s or the Respondent’s warranty. In determining what the cause of the problem was, Mr. Alvarez had taken off one panel on the condensing unit. At that time, he observed that the fuses were burnt out. 14. Complainant wanted Respondent to complete the repair but, due to a previously arranged appointment, could not wait several hours for Mr. Alvarez to return to the Home. It was mutually decided that Mr. Alvarez would return the following day. Mr. Alvarez then left the jobsite with the panel remaining open thinking that he would return the following day to complete the job. 15. Upon discussing this matter with Mr. Bardo, Respondent determined that because of scheduling problems with Complainant, it would be best if Complainant hired another contractor to perform the work. Mr. Bardo testified that Respondent determined that because Complainant was out of warranty with the Respondent and that only parts for the compressor were covered under the manufacturer’s warranty, Complainant would have to pay for labor anyway and would not incur additional expense. 16. Mr. Alvarez called Complainant the evening of the above-mentioned service call and left a message on her answering machine informing her of Respondent’s decision not to perform the work. By the time Complainant received the message, it was too late to call another contractor. The next day, Complainant contacted Parker & Sons and arranged for it to be out to the Home the following day. 17. On November 13, 1998, Complainant called Parker & Sons to address the functioning problem Complainant had with the condensing unit. During that service call, Parker & Sons replaced a fuse for a charge of $40.00.

18. On November 17, 1998, Parker & Sons were called to the Home because Complainant had no heat. At that time, Parker & Sons replaced the reversing valve on the Janitrol condensing unit. Although Parker & Sons did not charge Complainant for the parts, as they were under warranty, it charged her $519.00 for labor. 19. As of the date of the hearing, the Janitrol condensing unit at the Home is working. However, Complainant is concerned that with each season, she may have a problem converting from heating to cooling and may incur service charges to replace freon. In support of her contention, Complainant relies upon a written statement in a Parker & Sons receipt indicating a compatibility problem between the air handler inside the Home with the condensing unit. While such evidence is considered in support of Complainant’s contention, Complainant fails to present other corroborating evidence. In contrast, both Mr. Bardo and Mr. Alvarez testified that there is no compatibility problem between the Janitrol condensing unit and the Home’s air handler. It is determined that the weight of the credible evidence presented establishes that there is no compatibility problem between the Janitrol condensing unit and the air handler. 20. It is also determined that the evidence of record establishes that, currently, Complainant has no heating or cooling problem. 21. The testimony of Mr. Bardo and Mr. Alvarez as set forth above is determined to be credible. 22. Complainant did not sustain her burden of showing that she is entitled to restitution from Respondent for the $40.00 or $519.00 she paid to Parker & Sons. The evidence of record establishes that with respect to the latter, she did not pay for parts and only paid for labor she would have had to pay Respondent if it had performed such work. The evidence does not establish that Respondent is responsible for the burnt out fuse and Respondent is not responsible for the $40.00 Complainant incurred in having the fuse replaced. 23. Even though it is determined that Respondent is not responsible for restitution or for any remedial work, nothing herein condones the actions of Respondent in not returning to the jobsite to leave the equipment in the condition it was in prior to its last service call. However, Complainant did not establish that she sustained any injury or damage as a result of that situation. CONCLUSIONS OF LAW The evidence of record fails to establish that Respondent violated the provisions of A.R.S. §32-1154(A)(7). RECOMMENDED ORDER It is recommended that the Citation and Complaint issued in this matter be dismissed. Done this day, June 4, 1999

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826