ALJDEC decisions subject to certification as final

09F-H0279-ROC · Registrar of Contractors · 2009-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 24, 2009 APPEARANCES: Thomas W. Bridges appeared personally. N and L Investment Corp., doing business as Pitzer Air Conditioning, was represented by its general manager, Larry Thornton. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. N and L Investments Corp., doing business as Pitzer Air Conditioning (“Respondent”), is the holder of License No. 059892, a Class C-39 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On February 18, 2009, Thomas W. Bridges (“Complainant”) filed a written Complaint with the Registrar alleging damages caused by Respondent in the installation of a roof-mounted air conditioning unit at 4039 Mustang Springs Circle, Kingman, Arizona (“Subject Residence”). The Registrar designated the Complaint as Case No. H09- 0279. 3. The Registrar issued a Citation and Complaint on July 23, 2009, alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 4. The Registrar forwarded Case No. H09-0279 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. The subject property is owned by the Bridges Mullis Trust. Shirley Mullis is Complainant’s wife. 6. As a preliminary matter, the Administrative Law Judge addressed a previous arbitration involving the insurer of the Subject Residence and the insurer of Respondent.[1] The issue in the arbitration was whether Respondent’s installation of the mounting system of the air conditioner on the Subject Residence caused damages to the Subject Residence. 7. The arbitration was conducted by Arbitration Forums, Inc. 8. The arbitration resulted in the issuance of a Property Decision dated October 6, 2009. The arbitrator opined that Respondent’s workmanship did not result in damage to the Subject Residence. The Property Decision even references Respondent’s answer to the Complaint filed with the Registrar. 9. Complainant could not identify any issues in his Complaint that were not a part of the arbitration. 10. It is determined that the parties and their agents litigated the identical issues raised in Complainant’s Complaint in the arbitration. Based upon the doctrine of collateral estoppel, Complainant may not re- litigate the issues litigated in the arbitration in this administrative proceeding. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent in this matter. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. As a result of the prior arbitration, Complainant, on behalf of the Bridges Mullis Trust, cannot collaterally attack in this administrative proceeding the findings made by the arbitrator in the Property Decision. 4. As a result of the Property Decision issued in the prior arbitration, it is concluded that Respondent did not violate the provisions of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. RECOMMENDED ORDER The Citation and Complaint in Case No. H09-0279 shall be dismissed on the effective date of the Order issued in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, December 14, 2009.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Ms. Mullis was named as the insured of the Subject Residence.

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