ALJDEC

99F-2181-ROC · Registrar of Contractors · 1999-09-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 13, 1999 APPEARANCES: Ruth Silovic, Complainant, in her own behalf Joseph Huey, Esq. on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact On or about October 19, 1998, the Complainant contacted the Respondent because her air conditioning was not working properly. The Complainant’s home including the heating and cooling system was approximately three years old at the time. One of the Respondent’s repairmen, Mike Rotschild (Rotschild), went to the Complainant’s home and upon examining the system determined that the blower motor had open windings and would need replacement. The Complainant and Rotschild discussed the problem with the motor and the possibility that it was due to a power surge. Rotschild removed the motor, took it to Lennox Air Conditioning and Heating (Lennox), and asked that the motor be checked to determine the cause of the damage. Rotschild obtained a replacement motor from Lennox. The replacement motor was given to another employee to install. After an unexplained misdelivery of an incorrect motor, the replacement motor, an Emerson three speed, 1/3 horsepower, was installed at the Complainant’s home. The Complainant paid a total of $502.46 (including tax) for the motor and installation. The air conditioning-heating system still did not work because of a burned out relay in the system control panel. The Complainant was informed of the control panel problem. She told the Respondent to correct it and install a new panel. The Respondent disconnected the system from the power source for safety reasons. Between October 21, 1998 and November 27, 1998, the Complainant made a number of telephone calls to the Respondent to find out when the control panel would be installed and when she would receive her motor back. She was not given specific answers to either of her inquiries. The Respondent attempted to obtain the control panel from Lennox which tried to obtain it from Dallas, Texas. The panel was not received by the Respondent until approximately December 21, 1998. The Complainant’s motor was never returned to the Complainant. According to the testimony of Rotschild, he gave the motor to Lennox to have it checked to determine the cause of the damage. It is unknown if the motor was ever properly tested. Inquiries by the Complainant with her utility company disclosed no power surges at her residence which would explain the damage to the motor. When no further work was done by the Respondent by November 27, 1998, the Complainant contacted Wahl Air Conditioning, Inc. (Wahl), which inspected the system and also concluded the control board was burned. At this time, the system was still unplugged. Sometime between November 27, 1998, and December 4, 1998, the Complainant spoke with a person identified as “John” at the Respondent’s business. The evidence strongly suggests this was the Respondent’s new owner, John Herman (Herman). According to the Complainant, Herman acknowledged that the wrong motor had been installed and that the Respondent would return the $502.46. The money was not repaid to the Complainant. On December 4, 1998, Wahl installed a new control board at the cost of $488.64.The repair person from Wahl (Greg), told the Complainant the motor which had been installed by the Respondent was too small for the system. Greg then wired the system to provide heat during the winter months. On March 23, 1999, a repair person from Wahl replaced the blower motor with a five speed, 3/4 horsepower motor at a cost of $453.82, because the three speed motor was asserted to be inadequate for the air conditioning. The motor which had been installed by the Respondent is in the Complainant’s possession and was brought to the hearing. The Lennox manual for the Complainant’s system was revised in 1997, and a 3/4 horsepower motor is currently used with the system. It is unknown what motor was recommended in the earlier manual which would have been used when the Complainant’s home was built. Conclusions Of Law The Citation and Complaint allege violation of A.R.S. §32-1154(A)(1), abandonment of a contract or refusal to perform without legal excuse, and (A)(7), wrongful or fraudulent acts with substantial injury to another. The Respondent offers the excuse that it could not obtain the required part from the supplier until December 21, 1998. This is almost two months after the part was presumably ordered. On the other hand, Wahl was able to obtain the part in a week. By the time the Respondent obtained the part, the new control board had been installed at the Complainant’s for over two weeks. Another aspect of this portion of the case is that having disconnected the system, the Respondent left the Complainant without any climate control for a month and a half until the new control board was installed by Wahl. Although the evidence in its entirety does not establish abandonment, the Respondent’s evidence is barely sufficient to establish legal justification for a failure to perform. The letter of the Respondent’s Service Manager, J.E., to the Better Business Bureau is viewed as contradictory, confusing and vague. The more troublesome issue is the Respondent’s failure to return the Complainant’s motor or alternatively to provide some verification to the Complainant that the motor had been appropriately checked (as asserted at the hearing), to determine the cause of its failure. The Complainant testified she requested the old motor from the Respondent in order to determine the power surge issue and possibly confront her electrical utility. The Complainant testified credibly that she was told by John (the presumed new owner), that she would be repaid for the motor. The Respondent presented no credible evidence that the motor had in fact been tested by either Lennox or the manufacturer. The only evidence on this is that Rotschild testified he gave the motor to Lennox to have it checked. If this is the case, and the motor could not be returned to the Complainant, why was the Complainant not informed of the results of any determination by the manufacturer? After paying the Respondent $502.46, the Complainant had every right to have either the old motor returned or a reliable explanation of what caused its failure. Under the specific facts of this case, it is concluded that the Respondent’s conduct was wrongful within the meaning of A.R.S. §32-1154(A)(7). Recommended Order In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-39R license of the Respondent shall be suspended until the Respondent pays or tenders payment to the Complainant in the amount of $502.46 in exchange for the motor currently in the possession of the Complainant; It is further recommended that the Respondent’s obligation to pay is contingent on the Complainant’s willingness and ability to transfer the motor to the Respondent at the time of payment; It is further recommended that if the Respondent pays or tenders payment to the Complainant by the effective date of the Order entered in this matter, then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be closed. . . . . . . . . . Done this day, September 17, 1999.

______________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

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