ALJDEC decisions subject to certification as final

09F-P0022-ROC · Registrar of Contractors · 2009-07-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 23, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Al Adams. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C-39R License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new HVAC system on the Complainant’s residence. 3. The Complainant utilized the heating portion of the unit during the winter months and the unit worked satisfactorily. However, when the Complainant attempted to utilize the cooling portion of the unit on June 15, 2007, he found that the cooling system was not working properly and notified the Respondent. 4. Credible testimony and evidence established that the Respondent examined the unit on June 17, 2008. The Respondent found that the unit was functioning at no more than two-thirds of its capacity and notified the manufacturer. 5. The Respondent returned on June 20, 2008 and performed more testing of the unit. 6. The Complainant felt that the Respondent was not being properly responsive to his problems and on June 27, 2008 caused an alternative contractor to remove and replace the HVAC unit with a new HVAC unit from a different manufacturer. 7. When the Respondent refused to comply with the Complainant’s demand that the Respond return the $3,546.21 that the Complainant had paid the Respondent for the HVAC unit, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 8. The Respondent seeks restitution of the entire amount of $3,546.21 that he paid the Respondent for the HVAC unit. 9. There was no onsite inspection because the Respondent’s work had already been replaced. 10. Credible testimony and evidence established that the problem with the HVAC unit installed by the Respondent was due to a manufacturer’s error in installing the wrong flow meter in the unit. 11. Credible testimony and evidence established that the manufacturer had intended to correct the problem with the HVAC unit and had attempted to notify the Complainant of its intention to do so. 12. Credible testimony and evidence established that the Complainant caused the HVAC to be replaced before the manufacturer and the Respondent could deliver and install the proper flow meter. 13. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of restitution is due and owing to the Complainant from the Respondent. 14. Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith. This precludes a finding that a liquidated sum of restitution is owed to the Complainant.

15. The parties dispute regarding the Complainant’s claim for restitution is found to be a good faith money dispute which should be resolved, if all, in a civil court of competent jurisdiction. 16. The credible testimony and evidence is found to be inadequate and fails to support a finding of a failure to comply with applicable workmanship or industry standards in the Respondent’s installation of the Complainant’s HVAC unit. 17. There was no credible evidence of a wrongful or fraudulent act.

CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. 2. The credible evidence of record was inadequate to support any finding of a violation of the charged provisions of A.R.S. § 32-1154 (A)(7) (Wrongful or fraudulent); and (A)(3), namely Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based shall be dismissed.

In the event of certification of this 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 the certification. Done this day, July 23, 2009.

______________________________________ M. Douglas 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 ___________________________ -----------------------

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