ALJDEC decisions subject to certification as final

07F-T0426-ROC · Registrar of Contractors · 2008-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23rd, 2007, and January 30th, 2008. APPEARANCES: Complainant, Mr. Garry McClain, was represented by Mr. Patrick J. Lopez, Attorney-at-Law. Respondent, Audio Video Technologies AVT, was represented by Mr. Wayne McCoy, owner. 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 herein, Mr. Wayne Louis McCoy, doing business as Audio Video Technologies AVT, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-12 License number 187869. 2. Complainant, Mr. Garry McClain, is a homeowner residing in Tucson, Arizona. He contracted, to some extent, in writing with Respondent for Respondent to install electronic audio, video, lighting, home theater, security, satellite, internet, telephone and other equipment in Complainant’s home, including the wiring for it. Both parties agree and testified that there were many discussions between them not put into writing which materially affected the three written contract documents. Each party has in his own mind a clear understanding of what the contracts and oral modifications included and excluded, but their respective understandings of what were their agreements are in sharp dispute. 3. Complainant contends that the written instrument is controlling in some respects, whereas the Respondent says it is not the operative agreement they had. 4. Complainant contends that the contract was generally for a fully integrated home automation system. Respondent denies this and contends that only the lighting portion of the project was agreed to be fully automated. 5. Complainant contends that the contract prices called for installation, but Respondent contends that installation (labor) was a separate item not included in all of the work. 6. Complainant claims he is owed several thousands of dollars on the contract. Respondent denies that and contends that it is he who is owed several thousands of dollars on the contract. 7. The parties agree that the project is still not completed, but differ as to who is responsible for that situation. 8. Complainant has taken steps to have some of the work performed by third parties. 9. The Complainant was assigned to Registrar of Contractors Inspector Ed Monahan (since retired) who conducted a job site inspection, and issued a written Corrective Work Order to Respondent dated October 26th, 2006. The CWO stated: 1. The homeowner wants system installed and working. Correct by appropriate means. 2. The contractor says one part of the system (controls) is no longer available and he cannot provide. No action required. 3. There are some money matters the Registrar’s inspectors can do nothing about. No action required. 4. Complete this project according to all written and verbal contract agreements, prints, plans, specifications, manufacturer’s specifications and recommendations, in accordance with good workmanship practices, industry standards and per all applicable codes.

10. Owing to the parties’ disagreements about their agreements the work was not completed, and Complainant filed a request for an administrative hearing. Citation and Complaint issued from the Registrar’s office. Respondent filed a Written Answer to the Citation and Complaint, and this hearing ensued. 11. Inspector Monahan’s successor to the case, Inspector Richard C. Allen, conducted a pre-hearing inspection. At the pre-hearing inspection, Complainant refused to allow Respondent access to the home while the Inspector was there. Thus the Respondent’s input for the Inspector’s consideration was limited. Inspector Allen testified at the hearing that most of what he saw was incomplete work, with only some minor items needing correction. 12. 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.1, 7, 23, and 3, namely A.A.C. R4-9-108, Workmanship Standards. 3. A good faith monetary and/or contract dispute, absent evidence of other wrongdoing, does not warrant disciplinary action upon a licensee. See: Bentivegna v. Powers Steel & Wire Products, Inc., 206 Ariz. 581, 81 P.2d 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 a civil court of competent jurisdiction. Wherefore, it is hereby recommended that Citation and Complaint No. T07-0426 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 Hearings, then the effective date of the Order shall be 40 days after the date of that certification. Done this day, February 6th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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