ALJDEC decisions subject to certification as final

06F-T1233-ROC · Registrar of Contractors · 2007-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 17th, 2007; 1:30 p.m. APPEARANCES: Complainant, Eastwood Construction and Development Corporation, was represented by Ms. Tammy Pasanella, President. Respondent, Mr. Henry Loynal Manning, doing business as Seanmark Development, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston ___________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT 1. Respondent Mr. Henry Loynal Manning, doing business as Seanmark Development, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B License number 191771. 2. This controversy between the parties concerns a residential subdivision in Casa Grande, Arizona, which was developed by Complainant. The sole issue, as written by Complainant in its 48 separate Complaint forms filed with the Arizona Registrar of Contractors, is Respondent “did not cut the holes for the O’Hagin vents.” O’Hagin vents are installed in a roof, and according to Complainant, Respondent was to have cut the holes for them to be installed. 3. Complainant alleges that this was Respondent’s poor workmanship; however, the claim is not to do with work that was done poorly, but, rather, with work that was not done at all, and which Complainant alleges should have been done pursuant to the parties’ contract. 4. The Complaint was assigned to Registrar of Contractors Inspector Richard C. Allen. Inspector Allen conducted a job site inspection on July 17th, 2006. Both parties were present at the inspection. Inspector Allen testified at the administrative hearing. 5. Inspector Allen did verify that the roof vent holes had not been cut by the Respondent, but he could not issue a Corrective Work Order owing to the other conflicting information he received from the parties at the job site. Therefore, he wrote a letter to the parties dated July 18th, 2006, in which he informed them “Due to conflicting statements and conflicting unsigned contracts between these parties, I cannot confirm who is responsible to cut the sheathing in order to install the roof vents.” Complainant requested an administrative hearing, which was duly scheduled, noticed and held. 6. Inspector Allen’s testimony at the hearing basically reiterated his prior written statements, and the evidence corroborated them. The parties each produced a written contract for the framing in this project which they assert was the governing instrument. Complainant’s unsigned contract is a clean copy, while Respondent’s contains strike-throughs over the pertinent portions relative to the cutting of the holes for the vents. Complainant’s testimony denied that the parties ever agreed to amend the contract as it appears in Respondent’s version; Respondent’s testimony is that it faxed the amended version to Complainant, and Complainant never responded with any objection to the amendments, so it proceeded accordingly. Each party gave testimony offered to support their position that the other party understood at the time that the agreement was as he or she now denies it to be. 7. Therefore, it appears from the record as a whole that the parties have a good faith monetary and/or contract dispute which would be more properly resolved, if at all, in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1154.A.2, 7, and 3, namely A.A.C. R4-9-208, Workmanship Standards. 3. A good faith monetary and/or contract dispute, absent evidence of other wrongdoing, does not warrant disciplinary action upon a license. Bentivegna v. Powers Steel & Wire Products, Inc., 206 Ariz. 581, 81 P.3d 1040 (Ariz. App. Div 1, 2003).

RECOMMENDED ORDER The parties have a good faith monetary and/or contract dispute which should be more properly resolved, if at all, in civil court of competent jurisdiction. Wherefore, it is hereby recommended that Citation and Complaint No. T06-1233, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearing, then the effective date of he Order shall be 40 days after the date of that certification. Done this day, January 25th, 2007.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488