ALJDEC decisions subject to certification as final

08F-T1120-ROC · Registrar of Contractors · 2009-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 8, 2009; 1:30 p.m. APPEARANCES: Complainant Mr. Michael Lamonge represented himself. Respondent Tinajas Building Company, LLC was represented by Mr. Jonathan Tate, Qualifying Party ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Complainant Mr. Michael Lamonge filed the instant Complaint against Respondent Tinajas Building Company, LLC on March 17, 2008 listing several alleged defects in the Respondent’s workmanship in the construction of Complainant’s new home. 2. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves who conducted a job site inspection and following the inspection sent a letter to each party informing them as to each item that either the Registrar of Contractors lacked jurisdiction, the item was within industry and workmanship standards, had been corrected by the Respondent or had an indeterminable cause. 3. Complainant requested an administrative hearing at which he wished to be heard on three items. 4. The first item was the scuppers on the roof. The Inspector found them to be within industry standards. Complainant produced a bid from another licensed roofer which stated that there were some “minor” repairs needed. The contractor bid $4,050.00 to make the “minor” repairs. The licensed contractor also stated that some ponding of water will remain even after his replacement of the scuppers installed by Respondent. There is insufficient evidence to find that the Inspector’s opinion as to the scuppers was invalid. 5. The second item is the alleged problem with the cooling by the air conditioner. Respondent installed the air conditioner and prior to the hearing did have his licensed HVAC contractor return and make corrections. Complainant signed off approving the corrective work. 6. Later, another separate problem allegedly arose with the air conditioner which Complainant now wants the Respondent to fix. Complainant produced a bid from another licensed HVAC contractor for correction of coils in the air conditioner. There is no substantial evidence that any performance problem with the air conditioner is related to the Respondent’s installation. 7. Lastly, the Complainant alleges that Respondent promised to pay him money for a tile installation. There is no substantial evidence of this, and if the parties have a money dispute that is something beyond the Registrar of Contractors’ jurisdiction as stated by the Inspector in his letter. 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.7 and 3, namely A.A.C. R4-9- 108, Workmanship Standards. 3. There is no substantial evidence of any workmanship defects in the Respondent’s work in violation of A.A.C. R4-9-108 or A.R.S. § 32- 1154.A.3. Moreover, as to the air conditioning unit, the Registrar of Contractors’ Workmanship Standards state that deficiencies caused by a malfunction of the system are subject to the terms of the manufacturer’s warranty when there is no workmanship issue of the contractor involved. See: Arizona Registrar of Contractors’ Workmanship Standards for Licensed Contractors, February, 2009, page 2. 4. 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.3d 1040 (Ariz. App. Div. 1, 2003). RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint T08-1120, together with the Complaint on which it is based, 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, the effective date of the Order shall be 40 days after the date of that certification. Done this day, July 13, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com